The Mental Health Act 2007 (Commencement No.10 and Transitional Provisions) Order 2009

Made: 29th January 2009

Laid before Parliament: 4th February 2009

Coming into force: 1st April 2009

The Secretary of State, in exercise of the powers conferred by section 56(1) and (4) of the Mental Health Act 2007¹, and with the agreement of the Welsh Ministers, makes the following Order:

Citation and interpretation

1

• (1) This Order may be cited as the Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009 and shall come into force on the 1st April 2009.

• (2) In this Order,

• “the 2005 Act” means the Mental Capacity Act 2005²; and

• “the Act” means the Mental Health Act 2007.

Appointed day

2

The 1st April 2009 is the day appointed for the coming into force of the following provisions of the Act—

• (a) section 30 (independent mental health advocates), in so far as it applies to England and is not already in force;

• (b) section 50 (deprivation of liberty) in so far as not already in force;

• (c) Schedule 7 (which inserts new Schedule A1 into the 2005 Act) in so far as not already in force;

• (d) Schedule 8 (which inserts new Schedule 1A into the 2005 Act);

• (e) Schedule 9 (which makes other amendments to the 2005 Act and to other Acts) in so far as not already in force; and

• (f) Part 10 (deprivation of liberty) of Schedule 11 and in so far as it relates to that Part, section 55 (repeals and revocations) of the Act.

Schedule

3

The Schedule to this Order, which makes transitional provisions shall have effect.

SCHEDULE — TRANSITIONAL PROVISIONS

Interpretation

1

In this Schedule—

• “managing authority” shall be construed in accordance with paragraphs 176, 177 and 179 of Schedule A1 to the 2005 Act;

• “the Regulations” mean the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008³;

• “standard authorisation” has the same meaning as in paragraph 8 of Schedule A1 to the 2005 Act; and

• “urgent authorisation” has the same meaning as in paragraph 9 of Schedule A1 to the 2005 Act.

Standard authorisations

2

Where a request for a standard authorisation is made by the managing authority on or before the 30th April 2009, paragraph (1) of regulation 13 (time frame for assessments) of the Regulations shall apply to the request as if that paragraph read—

(1) Except as provided in paragraph (2), all assessments required for a standard authorisation must be completed within the period of 42 days beginning with the date on which the supervisory body⁴ receives a request for such an authorisation.

Urgent authorisations

3

Where a managing authority decides to give an urgent authorisation under paragraph 76 of Schedule A1 to the 2005 Act on or before the 30th April 2009, sub-paragraph (2) of paragraph 78 (terms of authorisation) of Schedule A1 to the 2005 Act shall apply as if that sub-paragraph read—

(2) That period must not exceed 21 days.

Extensions of authorisations

4

Paragraphs 77(3) to (5) (duty to give authorisation) and paragraphs 84, 85 and 86 (request for extension of duration) of Schedule A1 to the 2005 Act shall not apply in relation to urgent authorisations given on or before the 30th April 2009.

Signed

Signed by authority of the Secretary of State for Health.

Phil Hope — Minister of State, — Department of Health — 29th January 2009

Explanatory note

(This note is not part of the Order)

EXPLANATORY NOTE

This Order brings into force section 30 in so far as not already in force and the remaining provisions of section 50 of the Mental Health Act 2007 (“the Act”) and its related consequential amendments and repeals.

Section 30 of the Act inserts provisions about independent mental health advocates into the Mental Health Act 1983 (c.20). This Order commences this section in so far as it is not already in force in England. It is already fully in force in Wales.

Section 50 of the Act makes amendments to provisions of the Mental Capacity Act 2005 (“the 2005 Act”) relating to deprivation of liberty safeguards.

This Commencement Order type=start time=1288255018437commences section 50 and Schedulestype=end time=1288255018437 7 and 9 of the Act, in so far as not already in force and Schedule 8.

The Order also makes transitional provisions, which are set out in the Schedule. Paragraph 2 extends time for completing assessments for a standard authorisation from 21 days to 42 days provided that the request is received on or before the 30th April 2009; and paragraph 3 extends the period of an urgent authorisation from 7 to 21 days, provided it is given on or before the 30th April 2009. Paragraph 4 precludes requests for extensions of the duration of urgent authorisations given on or before the 30th April 2009.

Footnotes