Mental Health Act 2007

(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.

20

• (1) In section 146 (application to Scotland), omit the words from “88” to “138)”.

• (2) This paragraph does not extend to Scotland.

Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078)

21

• (1) The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 is amended as follows.

• (2) Omit the following provisions—

• (a) article 1(5),

• (b) article 2, and

• (c) article 3.

• (3) In article 8 (the title to which becomes “Patients absent from hospitals or other places in Scotland”), in paragraph (1)(b), for “290” substitute “ 289, 290, 309, 309A ”.

• (4) In article 12(2), for “2 to 11” substitute “ 4 to 11 ”.

SCHEDULE 6

Introduction

1

Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28) (provision of information to victims of restricted patients under the 1983 Act, etc.) is amended as set out in this Schedule.

Hospital orders (with or without restriction orders)

2

• (1) Section 36 (victims' rights: preliminary) is amended as follows.

• (2) In subsection (3), for “with a restriction order” substitute “ , whether with or without a restriction order, ”.

• (3) In subsection (5)—

• (a) in paragraph (a), after “discharge from hospital” insert “ while a restriction order is in force in respect of him ”, and

• (b) after paragraph (b) insert

; (“) what conditions he should be subject to in the event of his discharge from hospital under a community treatment order

.

3

After section 36 insert—

(36A) (1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order. (2) Subsection (3) applies if a person who appears to the local probation board or provider of probation services mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 36(4), expresses a wish— (a) to make representations about a matter specified in section 36(5), or (b) to receive the information specified in section 36(6). (3) The local probation board or the provider of probation services must— (a) notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and (b) notify that person of the name and address of the hospital. (4) Subsection (5) applies if a person who appears to the local probation board or provider of probation services mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 36(4), expresses a wish to do something specified in subsection (2)(a) or (b). (5) The local probation board or provider of probation services mentioned in section 36(4) must take all reasonable steps— (a) to ascertain whether the hospital order made in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and (b) if the board or provider ascertains that the hospital order does continue in force— (i) to notify the managers of the relevant hospital of that person's wish, and (ii) to notify that person of the name and address of the hospital. (6) The relevant hospital is— (a) the hospital in which the patient is detained, or (b) if a community treatment order is in force in respect of the patient, the responsible hospital.

4

In section 37 (the title to which becomes “Representations where restriction order made”), in subsection (1), for “if section 36 applies” substitute “ if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order ”.

5

After section 37 insert—

(37A) (1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order. (2) Subsection (3) applies if— (a) a person makes representations about a matter specified in section 36(5) to the managers of the relevant hospital, and (b) it appears to the managers that the person is the victim of the offence or acts for the victim of the offence. (3) The managers must forward the representations to the persons responsible for determining the matter. (4) The responsible clinician must inform the managers of the relevant hospital if he is considering making— (a) an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983, (b) a community treatment order in respect of the patient, or (c) an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient. (5) Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order. (6) A Mental Health Review Tribunal must inform the managers of the relevant hospital if— (a) an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or (b) the patient's case is referred to the tribunal under section 67 of that Act. (7) Subsection (8) applies if— (a) the managers of the relevant hospital receive information under subsection (4), (5) or (6), and (b) a person who appears to the managers to be the victim of the offence or to act for the victim of the offence— (i) when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5), or (ii) has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained. (8) The managers of the relevant hospital must provide the information to the person. (9) The relevant hospital has the meaning given in section 36A(6).

6

In section 38 (the title to which becomes “Information where restriction order made”), in subsection (1) for “if section 36 applies” substitute “ if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order ”.

7

After section 38 insert —

(38A) (1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order. (2) The responsible clinician must inform the managers of the relevant hospital— (a) whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983; (b) whether he is to make a community treatment order in respect of the patient; (c) if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order; (d) if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order; (e) if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force; (f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire. (3) Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order. (4) Subsection (5) applies if— (a) an application is made to a Mental Health Review Tribunal under section 66 or 69 of the Mental Health Act 1983, (b) the patient's case is referred to a Mental Health Review Tribunal under section 67 of that Act, or (c) the managers of the relevant hospital refer the patient's case to a Mental Health Review Tribunal under section 68 of that Act. (5) The tribunal must inform the managers of the relevant hospital if it directs that the patient is to be discharged. (6) Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence— (a) when his wishes were ascertained under section 36(4), expressed a wish to receive the information specified in section 36(6), or (b) has subsequently informed the managers of the relevant hospital that he wishes to receive that information. (7) The managers of the relevant hospital order must take all reasonable steps— (a) to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983; (b) to inform that person whether a community treatment order is to be made in respect of the patient; (c) if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions; (d) if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family; (e) if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force; (f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire; (g) to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case. (8) The relevant hospital has the meaning given by section 36A(6). (38B) (1) This section applies if, in a case where section 36 applies— (a) the hospital order in respect of the patient was made with a restriction order, and (b) the restriction order ceases to have effect while the hospital order continues in force. (2) Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence— (a) when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5) or to receive the information specified in section 36(6), or (b) has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information. (3) The relevant probation body must take all reasonable steps— (a) to notify the managers of the relevant hospital of an address at which that person may be contacted; (b) to notify that person of the name and address of the hospital. (4) While the hospital order continues in force, the patient is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly. (5) The relevant hospital has the meaning given in section 36A(6). (6) The relevant probation body has the meaning given in section 37(8).

Hospital directions and limitation directions

8

In section 39 (victims' rights: preliminary), in subsection (3)—

• (a) in paragraph (a), after “discharge from hospital” insert “ while he is subject to a limitation direction ”, and

• (b) after that paragraph insert—

(aa) what conditions he should be subject to in the event of his discharge from hospital under a community treatment order;

.

9

After section 41 insert—

(41A) (1) This section applies if, in a case where section 39 applies— (a) the limitation direction in respect of the offender ceases to be in force, and (b) he is treated for the purposes of the Mental Health Act 1983 as a patient in respect of whom a hospital order has effect. (2) Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence— (a) when his wishes were ascertained under section 39(2), expressed a wish to make representations about a matter specified in section 39(3) or to receive the information specified in section 39(4), or (b) has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information. (3) The relevant probation body must take all reasonable steps— (a) to notify the managers of the relevant hospital of an address at which that person may be contacted; (b) to notify that person of the address of the hospital. (4) The offender is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly. (5) The relevant hospital has the meaning given in section 36A(6). (6) The relevant probation body has the meaning given in section 40(8).

Transfer directions (with or without restriction directions)

10

• (1) Section 42 (victims' rights: preliminary) is amended as follows.

• (2) In subsection (1)(c), for “and a restriction direction in respect of him” substitute “ in respect of the offender (whether or not he also gives a restriction direction in respect of the offender) ”.

• (3) In subsection (3)—

• (a) in paragraph (a), after “discharge from hospital” insert “ at a time when a restriction direction is in force in respect of him ”, and

• (b) after paragraph (b) insert

; (“) what conditions he should be subject to in the event of his discharge from hospital under a community treatment order

.

11

After section 42 insert—

(42A) (1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction. (2) Subsection (3) applies if a person who appears to the local probation board or provider of probation services mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 42(2), expresses a wish— (a) to make representations about a matter specified in section 42(3), or (b) to receive the information specified in section 42(4). (3) The local probation board or provider of probation services must— (a) notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and (b) notify that person of the name and address of the hospital. (4) Subsection (5) applies if a person who appears to the local probation board or provider of probation services mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 42(2), expressed a wish to do something specified in subsection (2)(a) or (b). (5) The local probation board or provider of probation services mentioned in section 42(2) must take all reasonable steps— (a) to ascertain whether the transfer direction given in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and (b) if the board or the provider ascertains that the transfer direction does continue in force— (i) to notify the managers of the relevant hospital of that person's wish, and (ii) to notify that person of the name and address of the hospital. (6) The relevant hospital has the meaning given in section 36A(6).

12

In section 43 (the title to which becomes “Representations where restriction direction made”), in subsection (1), for “if section 42 applies” substitute “ if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction ”.

13

After section 43 insert—

(43A) (1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction. (2) Subsection (3) applies if— (a) a person makes representations about a matter specified in section 42(3) to the managers of the relevant hospital, and (b) it appears to the managers that the person is the victim of the offence or acts for the victim of the offence. (3) The managers must forward the representations to the persons responsible for determining the matter. (4) The responsible clinician must inform the managers of the relevant hospital if he is considering making— (a) an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983, (b) a community treatment order in respect of him, or (c) an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient. (5) Any person who has power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order. (6) A Mental Health Review Tribunal must inform the managers of the relevant hospital if— (a) an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or (b) the patient's case is referred to the tribunal under section 67 of that Act. (7) Subsection (8) applies if— (a) the managers of the relevant hospital receive information under subsection (4), (5) or (6), and (b) a person who appears to the managers to be the victim of the offence or to act for the victim of the offence— (i) when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3), or (ii) has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained. (8) The managers of the relevant hospital must provide the information to the person. (9) The relevant hospital has the meaning given in section 36A(6).

14

In section 44 (the title to which becomes “Information where restriction direction made”), in subsection (1), for “if section 42 applies” substitute “ if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction ”.

15

After section 44 insert —

(44A) (1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction. (2) The responsible clinician must inform the managers of the relevant hospital— (a) whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983; (b) whether he is to make a community treatment order in respect of the patient; (c) if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order; (d) if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order; (e) if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force; (f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire. (3) Any person who has power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order. (4) Subsection (5) applies if— (a) an application is made to a Mental Health Review Tribunal under section 66 or 69 of the Mental Health Act 1983, (b) the patient's case is referred to a Mental Health Review Tribunal under section 67 of that Act, or (c) the managers of the relevant hospital refer the patient's case to a Mental Health Review Tribunal under section 68 of that Act. (5) The tribunal must inform the managers of the relevant hospital if it directs that the patient be discharged. (6) Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence— (a) when his wishes were ascertained under section 42(2), expressed a wish to receive the information specified in section 42(4), or (b) has subsequently informed the managers of the relevant hospital that he wishes to receive that information. (7) The managers of the relevant hospital order must take all reasonable steps— (a) to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983; (b) to inform that person whether a community treatment order is to be made in respect of the patient; (c) if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions; (d) if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family; (e) if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force; (f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire; (g) to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case. (8) The relevant hospital has the meaning given by section 36A(6). (44B) (1) This section applies if, in a case where section 42 applies— (a) the transfer direction in respect of the patient was given with a restriction direction, and (b) the restriction direction ceases to be in force while the transfer direction continues in force. (2) Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence— (a) when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3) or to receive the information specified in section 42(4), or (b) has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information. (3) The relevant probation body must take all reasonable steps— (a) to notify the managers of the relevant hospital of an address at which that person may be contacted; (b) to notify that person of the name and address of the hospital. (4) While the transfer direction continues in force, the patient is to be regarded as a patient in respect of whom a transfer direction was given without a restriction direction; and sections 43A and 44A are to apply in relation to him accordingly. (5) The relevant hospital has the meaning given in section 36A(6). (6) The relevant probation body has the meaning given in section 43(8).

Interpretation

16

• (1) Section 45 (the title to which becomes “Interpretation: sections 35 to 44B”) is amended as follows.

• (2) In subsection (1)—

• (a) for “44” substitute “ 44B ”, and

• (b) at the appropriate places insert—

“community treatment order” has the meaning given in section 17A of the Mental Health Act 1983;

,

“the managers” has the meaning given in section 145 of the Mental Health Act 1983;

,

“responsible clinician” means the responsible clinician for the purposes of Part 3 of the Mental Health Act 1983;

, and

“responsible hospital” has the meaning given in section 17A of the Mental Health Act 1983;

.

• (3) In subsection (2), for “44” substitute “ 44B ”.

• (4) After subsection (2) insert—

(3) A reference in sections 35 to 44B to a place in which a person is detained includes a reference to a place in which he is liable to be detained under the Mental Health Act 1983. (4) For the purposes of section 32(3) of that Act (regulations as to delegation of managers' functions, etc.) as applied by Parts 1 and 2 of Schedule 1 to that Act, a function conferred on the managers of a hospital under sections 35 to 44B of this Act is to be treated as a function of theirs under Part 3 of that Act.

SCHEDULE 7

Before Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—

SCHEDULE 8

After Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—

SCHEDULE 9

Part 1 — Other amendments to Mental Capacity Act 2005

Introduction

1

The Mental Capacity Act 2005 (c. 9) is amended as set out in this Part of this Schedule.

New section 21A

2

After section 21 insert—

(21A) (1) This section applies if either of the following has been given under Schedule A1— (a) a standard authorisation; (b) an urgent authorisation. (2) Where a standard authorisation has been given, the court may determine any question relating to any of the following matters— (a) whether the relevant person meets one or more of the qualifying requirements; (b) the period during which the standard authorisation is to be in force; (c) the purpose for which the standard authorisation is given; (d) the conditions subject to which the standard authorisation is given. (3) If the court determines any question under subsection (2), the court may make an order— (a) varying or terminating the standard authorisation, or (b) directing the supervisory body to vary or terminate the standard authorisation. (4) Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters— (a) whether the urgent authorisation should have been given; (b) the period during which the urgent authorisation is to be in force; (c) the purpose for which the urgent authorisation is given. (5) Where the court determines any question under subsection (4), the court may make an order— (a) varying or terminating the urgent authorisation, or (b) directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation. (6) Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination. (7) An order under subsection (6) may, in particular, exclude a person from liability.

Section 35: Appointment of independent mental capacity advocates

3

In section 35, in subsection (1) after “relate” insert “ or persons who fall within section 39A, 39C or 39D ”.

Section 38: IMCAs and provision of accommodation by NHS body

4

• (1) Section 38 is amended as follows.

• (2) After subsection (2) insert—

(2A) And this section does not apply if— (a) an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the NHS body) to represent P, and (b) the hospital or care home in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section.

• (3) After subsection (9) insert—

(10) For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.

Section 39: IMCAs and provision of accommodation by local authority

5

• (1) Section 39 is amended as follows.

• (2) After subsection (3) insert—

(3A) And this section does not apply if— (a) an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the local authority) to represent P, and (b) the place in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section.

• (3) After subsection (6) insert—

(7) For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.

New section 39A

6

After section 39 insert—

(39A) (1) This section applies if— (a) a person (“P”) becomes subject to Schedule A1, and (b) the managing authority of the relevant hospital or care home are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests. (2) The managing authority must notify the supervisory body that this section applies. (3) The supervisory body must instruct an independent mental capacity advocate to represent P. (4) Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section. (5) This section is subject to paragraph 161 of Schedule A1. (6) For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration. (39B) (1) This section applies for the purposes of section 39A. (2) P becomes subject to Schedule A1 in any of the following cases. (3) The first case is where an urgent authorisation is given in relation to P under paragraph 76(2) of Schedule A1 (urgent authorisation given before request made for standard authorisation). (4) The second case is where the following conditions are met. (5) The first condition is that a request is made under Schedule A1 for a standard authorisation to be given in relation to P (“the requested authorisation”). (6) The second condition is that no urgent authorisation was given under paragraph 76(2) of Schedule A1 before that request was made. (7) The third condition is that the requested authorisation will not be in force on or before, or immediately after, the expiry of an existing standard authorisation. (8) The expiry of a standard authorisation is the date when the authorisation is expected to cease to be in force. (9) The third case is where, under paragraph 69 of Schedule A1, the supervisory body select a person to carry out an assessment of whether or not the relevant person is a detained resident. (39C) (1) This section applies if— (a) an authorisation under Schedule A1 is in force in relation to a person (“P”), (b) the appointment of a person as P's representative ends in accordance with regulations made under Part 10 of Schedule A1, and (c) the managing authority of the relevant hospital or care home are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests. (2) The managing authority must notify the supervisory body that this section applies. (3) The supervisory body must instruct an independent mental capacity advocate to represent P. (4) Paragraph 159 of Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section. (5) The appointment of an independent mental capacity advocate under this section ends when a new appointment of a person as P's representative is made in accordance with Part 10 of Schedule A1. (6) For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration. (39D) (1) This section applies if— (a) an authorisation under Schedule A1 is in force in relation to a person (“P”), (b) P has a representative (“R”) appointed under Part 10 of Schedule A1, and (c) R is not being paid under regulations under Part 10 of Schedule A1 for acting as P's representative. (2) The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases. (3) The first case is where P makes a request to the supervisory body to instruct an advocate. (4) The second case is where R makes a request to the supervisory body to instruct an advocate. (5) The third case is where the supervisory body have reason to believe one or more of the following— (a) that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights; (b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it; (c) that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it. (6) The duty in subsection (2) is subject to section 39E. (7) If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters— (a) the effect of the authorisation; (b) the purpose of the authorisation; (c) the duration of the authorisation; (d) any conditions to which the authorisation is subject; (e) the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, decided that P met the qualifying requirement in question; (f) the relevant rights; (g) how to exercise the relevant rights. (8) The advocate is, in particular, to take such steps as are practicable to help P or R— (a) to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or (b) to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right. (9) If the advocate helps P or R to exercise the right of review— (a) the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable; (b) the advocate may give information, or make submissions, to any assessor carrying out a review assessment. (10) In this section— - “relevant rights” means— 1. the right to apply to court, and 2. the right of review; - “right to apply to court” means the right to make an application to the court to exercise its jurisdiction under section 21A; - “right of review” means the right under Part 8 of Schedule A1 to request a review. (39E) (1) This section applies if an advocate is already representing P in accordance with an instruction under section 39D. (2) Section 39D(2) does not require another advocate to be instructed, unless the following conditions are met. (3) The first condition is that the existing advocate was instructed— (a) because of a request by R, or (b) because the supervisory body had reason to believe one or more of the things in section 39D(5). (4) The second condition is that the other advocate would be instructed because of a request by P.

Section 40: Exceptions to duty to appoint IMCAs

7

• (1) Section 40 (as substituted by section 49 of this Act) is amended as follows.

• (2) The provision of section 40 becomes subsection (1) of section 40.

• (3) In subsection (1) for “or 39(4) or (5)” substitute “ , 39(4) or (5), 39A(3), 39C(3) or 39D(2) ”.

• (4) After subsection (1) insert—

(2) A person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, a person nominated by P as a person to be consulted in matters to which a duty mentioned in subsection (1) relates.

Section 42: Codes of practice

8

• (1) Section 42 is amended as follows.

• (2) In subsection (1), after paragraph (f) insert—

(fa) for the guidance of persons exercising functions under Schedule A1, (fb) for the guidance of representatives appointed under Part 10 of Schedule A1,

.

• (3) In subsection (4), after paragraph (d) insert—

(da) in the exercise of functions under Schedule A1, (db) as a representative appointed under Part 10 of Schedule A1,

.

Section 50: Application to the Court of Protection

9

In section 50, after subsection (1) insert—

(1A) Nor is permission required for an application to the court under section 21A by the relevant person's representative.

Section 64: Interpretation

10

• (1) Section 64 is amended as follows.

• (2) In subsection (1), insert at the appropriate place—

“authorisation under Schedule A1” means either— (a) a standard authorisation under that Schedule, or (b) an urgent authorisation under that Schedule.

• (3) In subsection (1), in the definition of “local authority” after “ “local authority”” insert “ , except in Schedule A1, ”.

• (4) After subsection (4) insert—

(5) In this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention. (6) For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.

Section 65: Rules, regulations and orders

11

• (1) Section 65 is amended as follows.

• (2) After subsection (4) insert—

(4A) Subsection (2) does not apply to a statutory instrument containing regulations made by the Secretary of State under Schedule A1. (4B) If such a statutory instrument contains regulations under paragraph 42(2)(b), 129, 162 or 164 of Schedule A1 (whether or not it also contains other regulations), the instrument may not be made unless a draft has been laid before and approved by resolution of each House of Parliament. (4C) Subject to that, such a statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament.

Part 2 — Amendments to other Acts

National Assistance Act 1948 (c. 29)

12

• (1) Section 47 of the National Assistance Act 1948 (removal to suitable premises of persons in need of care and attention) is amended as follows.

• (2) After subsection (1) insert—

(1A) But this section does not apply to a person (“P”) in either of the following cases. (1B) The first case is where an order of the Court of Protection authorises the managing authority of a hospital or care home (within the meaning of Schedule A1 to the Mental Capacity Act 2005) to provide P with proper care and attention. (1C) The second case is where— (a) an authorisation under Schedule A1 to the Mental Capacity Act 2005 is in force, or (b) the managing authority of a hospital or care home are under a duty under paragraph 24 of that Schedule to request a standard authorisation, and P is, or would be, the relevant person in relation to the authorisation.

• (3) This paragraph does not extend to Scotland.

Local Authority Social Services Act 1970 (c. 42)

13

• (1) Schedule 1 to the Local Authority Social Services Act 1970 (Social Services functions of local authorities) is amended as follows.

• (2) In the entry relating to the Mental Capacity Act 2005 (c. 9), insert the following entries at the appropriate places—

Section 39A	Instructing independent mental capacity advocate when giving an urgent authorisation, or making a request for a standard authorisation, under Schedule A1 to the Act.
Section 39C	Instructing independent mental capacity advocate when no representative for relevant person under Part 10 of Schedule A1 to the Act.
---	---
Section 39D	Instructing independent mental capacity advocate when representative for relevant person under Part 10 of Schedule A1 to the Act is not being paid.
---	---
Schedule A1	Any functions.
---	---

SCHEDULE 10

Interpretation

1

• (1) This Schedule is to be read as follows.

• (2) Reference to an enactment is to an enactment contained in this Act, unless otherwise stated.

• (3) Reference to an enactment contained in the 1983 Act includes reference to that enactment as applied by section 40(4) of that Act (patients concerned in criminal proceedings or under sentence).

Authority to detain etc

2

• (1) The provisions mentioned in sub-paragraph (4) do not affect—

• (a) the authority for the detention or guardianship of a person who is liable to be detained or subject to guardianship under the 1983 Act immediately before the date on which those provisions come into force,

• (b) the 1983 Act in relation to any application, order or direction for admission or removal to a hospital, or any guardianship application or order, made under that Act before that date or the exercise, before that date, of any power to remand,

• (c) the power to make on or after that date an application for the admission of a person to a hospital, or a guardianship application, where all the recommendations on which the application is to be founded are signed before that date, or

• (d) the authority for the detention or guardianship of a person in pursuance of such an application.

• (2) But those provisions do apply to the following events occurring on or after that date—

• (a) any renewal of the authority for the person's detention or guardianship,

• (b) any consideration of his case by the First-tier Tribunal or the Mental Health Review Tribunal for Wales, and

• (c) any decision about the exercise of any power to discharge him from detention or guardianship.

• (3) Sub-paragraph (2)(b) is subject to paragraph 4.

• (4) The provisions are—

• (a) section 1 and Schedule 1 (removal of categories of mental disorder),

• (b) section 2 (special provision for persons with learning disability),

• (c) section 3 (exclusions),

• (d) section 4 (replacement of “treatability” and “care” tests with appropriate treatment test),

• (e) section 5 (addition of appropriate treatment test),

• (f) section 7 (definition of “medical treatment”), and

• (g) the repeals in Schedule 11 which are consequential on any of those sections or that Schedule.

Consent to treatment

3

• (1) The amendments made by section 6 (appropriate treatment test in Part 4 of the 1983 Act) do not affect the application of a certificate under section 57(2)(b) or 58(3)(b) of the 1983 Act given before the date on which the amendments come into force.

• (2) The amendments made by sections 27 and 28 (electro-convulsive therapy, etc.) do not affect the application of a certificate under subsection (3) of section 58 of the 1983 Act which—

• (a) relates to electro-convulsive therapy (by virtue of regulations under subsection (1)(a) of that section), and

• (b) is given before the date on which those amendments come into force.

• (3) But any certificate under section 58(3)(b) of the 1983 Act that the patient has not consented to electro-convulsive therapy ceases to apply when those amendments come into force.

Reclassification of patients

4

The amendment made by paragraph 13 of Schedule 1 and the repeal in Schedule 11 of section 66(1)(d) and (fb) of the 1983 Act (which concern a patient's right to apply to a Mental Health Review Tribunal following a report about the form of his mental disorder) do not affect any right to apply in consequence of a report furnished before the date on which the amendment and repeal come into force.

Supervised community treatment

5

Section 32 and the amendments and repeals in Schedules 3 and 11 which are consequential on that section apply to a patient who is liable to be detained under the 1983 Act immediately before the date on which that section and those amendments and repeals come into force, as they apply to a patient who becomes so liable on or after that date.

Nearest relative

6

• (1) Subsections (2), (3) and (4)(b) of section 23 (extension of power to appoint acting nearest relative) do not apply to the making of an order under section 29 of the 1983 Act on or after the date on which those provisions come into force, if the application for the order was made before that date.

• (2) Subsections (6) and (7) of section 24 (duration of orders appointing nearest relative) do not affect—

• (a) any order made under section 29 of the 1983 Act before the date on which those subsections come into force, or

• (b) any order made under that section on or after that date if the application for it was made before that date.

• (3) But subsections (2)(a), (4) and (5) of section 24 (applications for discharge and variation) do apply in relation to an order mentioned in sub-paragraph (2)(a) or (b).

• (4) Section 25 (restriction of nearest relative's right to apply to tribunal) does not apply in relation to an order mentioned in sub-paragraph (2)(a) or (b).

7

• (1) If, by virtue of section 26 (civil partners) coming into force, a person ceases to be a patient's nearest relative, this does not affect—

• (a) any application to a Mental Health Review Tribunal under the 1983 Act made by that person, but not determined or withdrawn, before the date on which that section comes into force,

• (b) any notice under section 25 of that Act given by that person before that date, or

• (c) any application to a county court under section 30(1) of that Act made by that person, but not determined or withdrawn, before that date.

• (2) But section 26 does apply to the determination on or after that date of any application under section 29 or 30 of the 1983 Act made before that date.

Independent mental health advocates

8

• (1) Section 30—

• (a) applies to a patient who is liable to be detained under the 1983 Act immediately before the commencement date as it applies to a patient who becomes so liable on or after that date;

• (b) applies to a patient who is subject to guardianship under that Act immediately before the commencement date as it applies to a patient who becomes so subject on or after that date;

• (c) applies to a patient who is a community patient under that Act immediately before the commencement date as it applies to a patient who becomes a community patient on or after that date.

• (2) For the purposes of the provisions inserted by that section, a patient is to be treated as a qualifying patient within section 130C(3) of the 1983 Act if—

• (a) not being a formal patient, he discussed before the commencement date with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 57 of that Act applies, and

• (b) sub-paragraph (4) or (5) applies in relation to him.

• (3) A patient is also to be treated for those purposes as a qualifying patient within section 130C(3) of the 1983 Act if—

• (a) not having attained the age of 18 years and not being a formal patient, he discussed before the commencement date with a registered medical practitioner or approved clinician the possibility of being given a form of treatment to which section 58A of that Act applies, and

• (b) sub-paragraph (4) or (5) applies in relation to him.

• (4) This sub-paragraph applies in relation to the patient if, immediately before the commencement date, he has yet to be informed whether or not the treatment is proposed in his case.

• (5) This sub-paragraph applies in relation to the patient if, immediately before the commencement date—

• (a) he has been informed that the treatment is proposed in his case,

• (b) the proposal has not been withdrawn, and

• (c) the treatment has not been completed or discontinued.

• (6) A qualifying patient in relation to whom sub-paragraph (4) applies and who is informed on or after the commencement date that the treatment is proposed in his case, or in relation to whom sub-paragraph (5) applies, remains a qualifying patient until—

• (a) the proposal is withdrawn, or

• (b) the treatment is completed or discontinued.

• (7) In relation to a patient who is a qualifying patient within section 130C(3) of the 1983 Act by virtue of this paragraph, the responsible person under section 130D of that Act is to be the person with overall responsibility for the patient's case (and subsection (2)(e) of that section is to be read accordingly).

• (8) Sub-paragraph (9) applies in relation to a patient—

• (a) who is a qualifying patient within section 130C(2) of the 1983 Act by virtue of being a formal patient immediately before the commencement date, or

• (b) who is a qualifying patient within section 130C(3) of that Act by virtue of this paragraph.

• (9) The steps to be taken under subsection (1) of section 130D of that Act are to be taken on, or as soon as practicable after, the commencement date (and subsection (3) of that section is to be read accordingly).

• (10) In this paragraph—

• “approved clinician” has the same meaning as in the 1983 Act,

• “the commencement date” means the date on which section 30 comes into force, and

• “formal patient” means a patient who is—liable to be detained under the 1983 Act (otherwise than by virtue of section 4, 5(2) or (4), 135 or 136 of that Act),subject to guardianship under that Act, ora community patient under that Act.

Applications and references to Mental Health Review Tribunal

9

• (1) The amendments made by section 37 apply in relation to a patient who is liable to be detained under the 1983 Act immediately before the date on which the amendments come into force as they apply in relation to one who becomes so liable on or after that date.

• (2) The repeal in paragraph 20(b) of Schedule 3 of the reference in section 69(2)(b) of the 1983 Act to section 45B(2) of that Act (which concerns the right of a patient subject to a hospital direction to apply to a Mental Health Review Tribunal in the period of six months beginning with the date of the direction) does not affect any right to apply by virtue of a hospital direction dated before the date on which the repeal comes into force.

SCHEDULE 11

Part 1 — Removal of categories of mental disorder

Part 2 — Replacement of “treatability” and “care” tests

Part 3 — Approved clinicians and responsible clinicians

Part 4 — Safeguards for patients

Part 5 — Supervised community treatment

Part 6 — Organisation of tribunals

Part 7 — Cross-border arrangements

Part 8 — Restricted patients

Part 9 — Miscellaneous

Part 10 — Deprivation of liberty

Removal of categories of mental disorder

Further cases in which appropriate treatment test is to apply

Appropriate treatment test in Part 4 of 1983 Act

Change in definition of “medical treatment”

The fundamental principles

Amendments to Part 3 of 1983 Act

Further amendments to Part 3 of 1983 Act

Amendments to Part 4 of 1983 Act

Amendments to Part 5 of 1983 Act

Amendments to other provisions of 1983 Act

Amendments to other Acts

Certain registered medical practitioners to be treated as approved under section 12 of 1983 Act

Extension of power to appoint acting nearest relative

Discharge and variation of orders appointing nearest relative

Restriction of nearest relative's right to apply to tribunal

Civil partners

Electro-convulsive therapy, etc.

Withdrawal of consent

Independent mental health advocates

Community treatment orders, etc

Authority to treat

Repeal of provisions for after-care under supervision

References

Organisation

Cross-border arrangements

Conditionally discharged patients subject to limitation directions

Offence of ill-treatment: increase in maximum penalty on conviction on indictment

Informal admission of patients aged 16 or 17

Local Health Boards

Welsh Ministers: procedure for instruments

Transitional provisions and savings

Extent

Amendment to section 20(11) of Mental Capacity Act 2005

Meaning of “1983 Act”

Commencement of section 36

Juries Act 1974

Contempt of Court Act 1981

Family Law Act 1996

Housing Act 1996

Care Standards Act 2000

Mental Capacity Act 2005

National Health Service Act 2006

National Health Service (Wales) Act 2006

Police and Justice Act 2006

Application in respect of patient already in hospital

Return of patients absent without leave

Assignment of responsibility for community patients

Renewal of authority to detain patients

Special provisions as to patients absent without leave

Patients sentenced to imprisonment etc

Discharge

Orders appointing acting nearest relative

Regulations for purposes of Part 2

Wards of court

Restricted patients

Applications and references to Mental Health Review Tribunal

After-care services

Code of practice

General protection of detained patients

Offences

Duty to give information

Retaking of patients escaping from custody

Members of Parliament suffering from mental disorder

Interpretation

Extent

Application of certain provisions to patients concerned in criminal proceedings

Administration of Justice Act 1960

Criminal Appeal Act 1968

Courts-Martial (Appeals) Act 1968

Juries Act 1974

Introduction

Transfer of patients: Scotland

Transfer of patients: Northern Ireland

Transfer of patients: Channel Islands and Isle of Man

Patients absent from hospitals in England and Wales

Regulations for purposes of Part 6

General provisions as to patients removed from England and Wales

Interpretation

The 1983 Act

Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078)

Introduction

Hospital orders (with or without restriction orders)

Hospital directions and limitation directions

Transfer directions (with or without restriction directions)

Interpretation

After Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—

After Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—

Introduction

New section 21A

Section 35: Appointment of independent mental capacity advocates

Section 38: IMCAs and provision of accommodation by NHS body

Section 39: IMCAs and provision of accommodation by local authority

New section 39A

Section 40: Exceptions to duty to appoint IMCAs

Section 42: Codes of practice

Section 50: Application to the Court of Protection

Section 64: Interpretation

Section 65: Rules, regulations and orders

National Assistance Act 1948 (c. 29)

Local Authority Social Services Act 1970 (c. 42)

Interpretation

Authority to detain etc

Consent to treatment

Reclassification of patients

Supervised community treatment

Nearest relative

Independent mental health advocates

Applications and references to Mental Health Review Tribunal

Editorial notes