Mental Health Bill [HL]

A Bill to make provision to amend the Mental Health Act 1983 in relation to mentally disordered persons; and for connected purposes.

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Available Versions

15 Oct 2025
Ping: Pong
HL Bill 137 Commons Amendments
(0 amendments)
25 Jun 2025
Commons: Report
Bill 272 2024-25 (as amended in Public Bill Committee)
No digital version of this Bill was published by Parliament
Date Debate
Tuesday 14th October 2025 Report stage
24 Apr 2025
Commons: Committee
Bill 225 2024-25 (as brought from the House of Lords)
(87 amendments)
Date Debate
Tuesday 24th June 2025 Committee stage: 9th sitting
Thursday 19th June 2025 Committee stage: 8th sitting
Thursday 19th June 2025 Committee stage: 7th sitting
Tuesday 17th June 2025 Committee stage: 6th sitting
Tuesday 17th June 2025 Committee stage: 5th sitting
Thursday 12th June 2025 Committee stage: 4th sitting
Thursday 12th June 2025 Committee stage: 3rd sitting
Tuesday 10th June 2025 Committee stage: 2nd sitting
Tuesday 10th June 2025 Committee stage: 1st sitting
2 Apr 2025
Lords: Third
HL Bill 93 (as amended on Report)
(1 amendments)
Date Debate
Wednesday 23rd April 2025 3rd reading
24 Feb 2025
Lords: Report
HL Bill 73 (as amended in Committee)
(85 amendments)
Date Debate
Monday 31st March 2025 Report stage part two
Monday 31st March 2025 Report stage part one
6 Nov 2024
Lords: Committee
HL Bill 47 (as introduced)
No digital version of this Bill was published by Parliament
Date Debate
Monday 27th January 2025 Committee stage part two
Monday 27th January 2025 Committee stage part one
Wednesday 22nd January 2025 Committee stage part two
Wednesday 22nd January 2025 Committee stage part one
Monday 20th January 2025 Committee stage part two
Monday 20th January 2025 Committee stage part one
Tuesday 14th January 2025 Committee stage part two
Tuesday 14th January 2025 Committee stage part one

Relevant Documents

Bill PDF
HL Bill 73 (as amended in Committee)
Latest Amendments
HL Bill 73-II Second Marshalled list for Report
Explanatory Note
HL Bill 47 Explanatory Notes
Impact Assessment
Impact Assessment from the Department of Health and Social Care

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41 New Clauses Proposed

Page 1

Code of practice

 
1
Principles to inform decisions
 
 
In section 118 of the Mental Health Act 1983 (duty to prepare code of practice,
 
 
including principles which the person making it thinks should inform decisions
 
 
under the Act) for subsection (2B) substitute—
5
 
“(2B)
The statement of principles must, in particular, include the principles,
 
 
and address the matters, specified in the table.
 
 
Principle
 
 
Matters to be addressed
 
 
Choice and autonomy
 
 
involvement of patients in decision-making,
 
 
and consideration of the views of carers
10
 
and other interested parties
 
 
Least restriction
 
 
minimising restrictions on liberty so far as
 
 
consistent with patient wellbeing and
 
 
safety and public safety
 
 
Therapeutic benefit
15
 
effectiveness and appropriateness of
15
 
treatment
 
 
The person as an
 
 
treating patients with dignity and respect
 
 
individual
 
 
and considering their attributes and past
 
 
experiences”
 
2
Application of principles to Wales
20
 
(1)
Section 118 of the Mental Health Act 1983 is amended as follows.
 
 
(2)
In subsection (1), for “Secretary of State” substitute “appropriate national
 
 
authority”.
 
 
(3)
In subsection (2)—
 

Page 2

 
(a)
for “The code” substitute “A code prepared under this section”;
 
 
(b)
for “Secretary of State” substitute “appropriate national authority”.
 
 
(4)
In subsection (2A)—
 
 
(a)
for “The code” substitute “A code prepared under this section”;
 
 
(b)
for “Secretary of State” substitute “appropriate national authority”.
5
 
(5)
In subsection (2C), for “Secretary of State” substitute “appropriate national
 
 
authority”.
 
 
(6)
For subsection (2D) substitute—
 
 
“(2D)
Any person for whose guidance a code of practice under this section
 
 
is prepared or revised must have regard to the code.”
10
 
(7)
For subsection (3) substitute—
 
 
“(3)
Before preparing a code under this section or making any alteration
 
 
in it the appropriate national authority must consult such bodies as
 
 
appear to the appropriate national authority to be concerned.”
 
 
(8)
In subsection (4), for “the code and of any alteration in the code” substitute
15
 
“any code prepared by the Secretary of State under this section and any
 
 
alteration in such a code”.
 
 
(9)
After subsection (5) insert—
 
 
“(5A)
The Welsh Ministers must lay copies of any code prepared by them
 
 
under this section or any alteration in such a code before Senedd
20
 
Cymru; and if the Senedd passes a resolution requiring the code or
 
 
any alteration in it to be withdrawn, the Welsh Ministers must
 
 
withdraw the code or alteration, and where they withdraw the code,
 
 
must prepare a code in substitution for the one which is withdrawn.
 
 
(5B)
No resolution may be passed by Senedd Cymru under subsection (5A)
25
 
in respect of a code or revised code after the expiration of the period
 
 
of 40 days beginning with the day on which a copy of the code was
 
 
laid before the Assembly.
 
 
(5C)
For the purposes of subsection (5B) no account is to be taken of any
 
 
time during which the Senedd Cymru is dissolved or is in recess for
30
 
more than four days.”
 
 
(10)
In subsection (6) for “Secretary of State” substitute “appropriate national
 
 
authority”.
 
 
(11)
After subsection (7) insert—
 
 
“(8)
In this section “the appropriate national authority”—
35
 
(a)
in relation to England, means the Secretary of State;
 
 
(b)
in relation to Wales, means the Welsh Ministers.”
 

Page 3

Autism and learning disability

 
3
Application of the Mental Health Act 1983: autism and learning disability
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 1 (application of Act: “mental disorder”)—
 
 
(a)
in subsection (2), at the appropriate places insert—
5
 
““autism” means a lifelong developmental disorder of the mind
 
 
that affects how people perceive, communicate and interact
 
 
with others;”;
 
 
““learning disability” means a state of arrested or incomplete
 
 
development of the mind which includes significant impairment
10
 
of intelligence;”;
 
 
““psychiatric disorder” means mental disorder other than autism
 
 
or learning disability;”;
 
 
(b)
for subsections (2A) and (2B) substitute—
 
 
“(2A)
For the purposes of this Act, a person’s learning disability has
15
 
“serious behavioural consequences” if it is associated with
 
 
abnormally aggressive or seriously irresponsible conduct by
 
 
the person.”;
 
 
(c)
omit subsection (4).
 
 
(3)
In section 145 (interpretation of the Mental Health Act 1983), in subsection
20
 
(1), at the appropriate places insert—
 
 
“autism” has the meaning given in section 1;”;
 
 
“learning disability” has the meaning given in section 1;”;
 
 
“psychiatric disorder” has the meaning given in section 1;”;
 
 
““serious behavioural consequences” , in relation to a person’s learning
25
 
disability, is to be read in accordance with section 1 (2A) ;”.
 
 
(4)
Schedule 1 amends the Mental Health Act 1983 to—
 
 
(a)
prevent people from being detained under section 3 of that Act
 
 
(admission for treatment) on the basis of autism or learning disability,
 
 
and
30
 
(b)
make related changes in relation to the application of that Act to autism
 
 
and learning disability.
 

Page 4

4
People with autism or learning disability
 
 
In the Mental Health Act 1983, after Part 8 insert—
 

Part 8A

 
 
People in England with autism or learning disability
 
125A
Children and young people with autism or learning disability: reviews
5
 
(1)
The responsible commissioner must make arrangements for ensuring
 
 
that care, education and treatment review meetings take place in
 
 
relation to a patient if—
 
 
(a)
the patient is liable to be detained under this Act in a hospital
 
 
or registered establishment in England otherwise than—
10
 
(i)
by virtue of an emergency application where the second
 
 
medical recommendation referred to in section 4(4)(a)
 
 
has not been given and received, or
 
 
(ii)
by virtue of section 5(2) or (4), 135 or 136 or directions
 
 
for detention in a place of safety under section 35(4),
15
 
36(3), 37(4), 38(4) or 45A(5),
 
 
(b)
the patient is considered by the responsible commissioner to
 
 
have autism or a learning disability, and
 
 
(c)
the patient—
 
 
(i)
is aged under 18, or
20
 
(ii)
is aged 18 or over and is a person for whom a plan is
 
 
maintained under section 37 of the Children and
 
 
Families Act 2014 (education, health and care plans),
 
 
and
 
 
(d)
either—
25
 
(i)
the patient consents to meetings taking place and to the
 
 
disclosure of information in accordance with the
 
 
arrangements, and to the use of the information in
 
 
accordance with this Act, or
 
 
(ii)
the patient lacks capacity or competence to give that
30
 
consent but the responsible commissioner considers that
 
 
it is nonetheless in the patient’s best interests for the
 
 
meetings to take place, and information to be disclosed
 
 
and used, as mentioned in sub-paragraph (i) .
 
 
(2)
In this section “care, education and treatment review meeting” means
35
 
a meeting, convened by the responsible commissioner, for the purpose
 
 
of reviewing a patient’s case in order to—
 
 
(a)
identify any needs of the patient for—
 
 
(i)
social care provision,
 
 
(ii)
special educational provision, or
40
 
(iii)
medical treatment, and
 
 
(b)
make recommendations about—
 
 
(i)
whether and how any such needs can be met,
 

Page 5

 
(ii)
how the patient’s safety can be ensured while they are
 
 
liable to be detained,
 
 
(iii)
the discharge of the patient from the hospital or
 
 
registered establishment under section 23 (where that
 
 
section applies in relation to the patient), and
5
 
(iv)
how to reduce any risk of the patient being re-admitted
 
 
to a hospital or registered establishment following
 
 
discharge.
 
 
(3)
The arrangements under subsection (1) must include—
 
 
(a)
arrangements for the preparation of a report (whether by the
10
 
responsible commissioner or another person) setting out the
 
 
needs identified, and recommendations made, at each meeting,
 
 
(b)
arrangements for the provision of a copy of the report, within
 
 
the period of 14 days beginning with the day on which a
 
 
meeting takes place, to each of the following persons (other
15
 
than any who prepared the report)—
 
 
(i)
the responsible commissioner,
 
 
(ii)
the patient’s responsible clinician,
 
 
(iii)
the integrated care board that will have the duty under
 
 
section 117 to provide or arrange for the provision of
20
 
after-care services for the patient, and
 
 
(iv)
the local authority in whose area the patient is
 
 
ordinarily resident.
 
 
(The arrangements may also include provision authorising or requiring
 
 
a copy of the report to be given to other persons.)
25
 
(4)
The arrangements under subsection (1) must include arrangements
 
 
for ensuring that—
 
 
(a)
the first meeting in relation to the patient takes place within
 
 
the period of 14 days beginning with the applicable day, and
 
 
(b)
a further meeting takes place at least once in each successive
30
 
period of 12 months for which the patient remains liable to be
 
 
detained under this Act, beginning with the day on which the
 
 
first meeting takes place.
 
 
(5)
In subsection (4) “the applicable day” means—
 
 
(a)
in relation to a patient who is liable to be detained by virtue
35
 
of an emergency application—
 
 
(i)
if, when the second medical recommendation referred
 
 
to in section 4(4)(a) is received, the patient is considered
 
 
by the relevant commissioner to have autism or a
 
 
learning disability, the day on which that
40
 
recommendation is received;
 
 
(ii)
otherwise, the day on which the responsible
 
 
commissioner forms the view that the patient has autism
 
 
or a learning disability;
 
 
(b)
in relation to any other patient—
45

Page 6

 
(i)
if, when the patient becomes liable to be detained as
 
 
mentioned in subsection (1) (a) , the patient is considered
 
 
by the relevant commissioner to have autism or a
 
 
learning disability, the day on which the patient
 
 
becomes so liable;
5
 
(ii)
otherwise, the day on which the responsible
 
 
commissioner forms the view that the patient has autism
 
 
or a learning disability.
 
 
(6)
A patient may withdraw consent to the taking place of meetings and
 
 
to the disclosure of information in accordance with arrangements
10
 
under subsection (1) .
 
 
(7)
The arrangements under subsection (1) must include provision about—
 
 
(a)
how consent to the taking place of meetings or the disclosure
 
 
of information may be withdrawn;
 
 
(b)
what is to happen when consent is withdrawn (which may
15
 
include provision about who is to be informed).
 
125B
Other people with autism or learning disability: reviews
 
 
(1)
The responsible commissioner must make arrangements for ensuring
 
 
that care and treatment review meetings take place in relation to a
 
 
patient if—
20
 
(a)
the patient is liable to be detained under this Act in a hospital
 
 
or registered establishment in England otherwise than—
 
 
(i)
by virtue of an emergency application where the second
 
 
medical recommendation referred to in section 4(4)(a)
 
 
has not been given and received, or
25
 
(ii)
by virtue of section 5(2) or (4), 135 or 136 or directions
 
 
for detention in a place of safety under section 35(4),
 
 
36(3), 37(4), 38(4) or 45A(5),
 
 
(b)
the patient is considered by the responsible commissioner to
 
 
have autism or a learning disability,
30
 
(c)
the patient is aged 18 or over and is not a person for whom a
 
 
plan is maintained under section 37 of the Children and
 
 
Families Act 2014 (education, health and care plans), and
 
 
(d)
either—
 
 
(i)
the patient consents to meetings taking place and to the
35
 
disclosure of information in accordance with the
 
 
arrangements, and to the use of the information in
 
 
accordance with this Act, or
 
 
(ii)
the patient lacks capacity to give that consent but the
 
 
responsible commissioner considers that it is nonetheless
40
 
in the patient’s best interests for the meetings to take
 
 
place, and information to be disclosed and used, as
 
 
mentioned in sub-paragraph (i) .
 

Page 7

 
(2)
In this section “care and treatment review meeting” means a meeting,
 
 
convened by the responsible commissioner, for the purpose of
 
 
reviewing a patient’s case in order to—
 
 
(a)
identify any needs of the patient for—
 
 
(i)
social care provision, or
5
 
(ii)
medical treatment, and
 
 
(b)
make recommendations about—
 
 
(i)
whether and how any such needs can be met,
 
 
(ii)
how the patient’s safety can be ensured while they are
 
 
liable to be detained,
10
 
(iii)
the discharge of the patient from the hospital or
 
 
registered establishment under section 23 (where that
 
 
section applies in relation to the patient), and
 
 
(iv)
how to reduce any risk of the patient being re-admitted
 
 
to a hospital or registered establishment following
15
 
discharge.
 
 
(3)
The arrangements under subsection (1) must include arrangements
 
 
for—
 
 
(a)
the preparation of a report (whether by the responsible
 
 
commissioner or another person) setting out the needs
20
 
identified, and recommendations made, at each meeting, and
 
 
(b)
the provision of a copy of the report, within the period of 14
 
 
days beginning with the day on which a meeting takes place,
 
 
to each of the following persons (other than any who prepared
 
 
the report)—
25
 
(i)
the responsible commissioner,
 
 
(ii)
the patient’s responsible clinician, and
 
 
(iii)
the integrated care board that will have the duty under
 
 
section 117 to provide or arrange for the provision of
 
 
after-care services for the patient, and
30
 
(iv)
the local authority in whose area the patient is
 
 
ordinarily resident.
 
 
(The arrangements may also include provision authorising or requiring
 
 
a copy of the report to be given to other persons.)
 
 
(4)
The arrangements under subsection (1) must include arrangements
35
 
for ensuring that—
 
 
(a)
the first meeting in relation to the patient takes place within
 
 
the period of 28 days beginning with the applicable day, and
 
 
(b)
a further meeting takes place at least once in each successive
 
 
period of 12 months for which the patient remains liable to be
40
 
detained under this Act, beginning with the day on which the
 
 
first meeting takes place.
 
 
(5)
In subsection (4) “the applicable day” has the meaning given by section
 
 
125A (5) .
 

Page 8

 
(6)
A patient may withdraw consent to the taking place of meetings and
 
 
to the disclosure of information in accordance with arrangements
 
 
under subsection (1) .
 
 
(7)
The arrangements under subsection (1) must include provision about—
 
 
(a)
how consent to the taking place of meetings or the disclosure
5
 
of information may be withdrawn;
 
 
(b)
what is to happen when consent is withdrawn (which may
 
 
include provision about who is to be informed).
 
125C
Reviews: supplementary
 
 
In exercising functions in relation to a patient in respect of whom a
10
 
review meeting has taken place under section 125A or 125B , the
 
 
following must have regard to the recommendations set out in a report
 
 
prepared in accordance with that section—
 
 
(a)
the patient’s responsible clinician;
 
 
(b)
the responsible commissioner;
15
 
(c)
the integrated care board to which the report is provided;
 
 
(d)
the local authority to which the report is provided.
 
125D
Registers of people at risk of detention
 
 
(1)
Each integrated care board must, in accordance with this section,
 
 
establish and maintain a register and include a person in that register
20
 
if—
 
 
(a)
the person is someone for whom the board has responsibility
 
 
for the purposes of this section,
 
 
(b)
the person is someone the integrated care board considers—
 
 
(i)
to have autism or a learning disability, and
25
 
(ii)
to have specified risk factors for detention under Part
 
 
2 of this Act, and
 
 
(c)
either—
 
 
(i)
the person consents to their inclusion in the register
 
 
and the use, in accordance with this section, of
30
 
information about them, or
 
 
(ii)
the person lacks capacity or competence to give that
 
 
consent but the board considers that it nonetheless in
 
 
their best interests to be included in the register and
 
 
for the use, in accordance with this section, of
35
 
information about them.
 
 
(2)
The register must specify the local authority in whose area each person
 
 
included in it is ordinarily resident.
 
 
(3)
The Secretary of State may by regulations make provision about—
 
 
(a)
the establishment and maintenance of a register under
40
 
subsection (1) ;
 

Page 9

 
(b)
the information about a person that is to be included in a
 
 
register;
 
 
(c)
the obtaining by an integrated care board of—
 
 
(i)
information for the purpose of determining whether
 
 
subsection (1) (b) or (c) applies in relation to a person,
5
 
or
 
 
(ii)
information for inclusion in the register;
 
 
(d)
the disclosure by or to any person of information included in
 
 
a register or obtained by virtue of paragraph (c) ;
 
 
(e)
the withdrawal of consent by a person to their inclusion in the
10
 
register.
 
 
(4)
The Secretary of State must by regulations specify the description of
 
 
people for which each integrated care board is “responsible” for the
 
 
purpose of this section, who must be people in relation to which the
 
 
board has commissioning functions.
15
 
(5)
In this section “specified risk factors for detention under Part 2 of this
 
 
Act” means factors which are specified in regulations made by the
 
 
Secretary of State as factors that the Secretary of State considers
 
 
increase the probability of a person being detained under Part 2 of
 
 
this Act.
20
125E
Registers: duties relating to commissioning of services etc
 
 
(1)
An integrated care board must, in exercising its commissioning
 
 
functions—
 
 
(a)
have regard to the information included in its register under
 
 
section 125D and any other information obtained by it by virtue
25
 
of section 125D (3) (c) , and
 
 
(b)
seek to ensure that the needs of people with autism or a
 
 
learning disability can be met without detaining them under
 
 
Part 2 of this Act.
 
 
(2)
A local authority must, in exercising its market function—
30
 
(a)
have regard to any information disclosed to it by virtue of
 
 
section 125D (3) (d) , and
 
 
(b)
seek to ensure that the needs of people with autism or a
 
 
learning disability can be met without detaining them under
 
 
Part 2 of this Act.
35
 
(3)
In this section “market function”, in relation to a local authority, means
 
 
its function under section 5(1) of the Care Act 2014 (promoting
 
 
diversity and quality in provision of services).
 
125F
Guidance
 
 
(1)
The Secretary of State must publish guidance for the following about
40
 
the exercise of their functions under this Part—
 
 
(a)
responsible clinicians;
 

Page 10

 
(b)
responsible commissioners;
 
 
(c)
integrated care boards;
 
 
(d)
local authorities.
 
 
(2)
The persons referred to in subsection (1) (a) to (d) must have regard
 
 
to guidance published under this section.
5
125G
Interpretation of Part 8A
 
 
(1)
In this Part—
 
 
“commissioning functions” , in relation to an NHS commissioning
 
 
body, means functions of the body in arranging for the
 
 
provision of services as part of the health service continued
10
 
under section 1(1) of the National Health Service Act 2006;
 
 
“local authority” means—
 
 
(a)
a county council in England,
 
 
(b)
a district council for an area in England for which there
 
 
is no county council,
15
 
(c)
a London borough council,
 
 
(d)
the Common Council of the City of London, or
 
 
(e)
the Council of the Isles of Scilly;
 
 
“NHS commissioning body” means NHS England or an integrated
 
 
care board;
20
 
“responsible clinician” has the same meaning as it has in Part 2
 
 
(see section 34(1));
 
 
“responsible commissioner” , in relation to a patient liable to be
 
 
detained in a hospital or registered establishment, means the
 
 
NHS commissioning body in pursuance of whose
25
 
commissioning functions arrangements are required to be made
 
 
for the patient's admission to the hospital or registered
 
 
establishment;
 
 
“social care provision” has the same meaning as it has in Part 3
 
 
of the Children and Families Act 2014 (see section 21 of that
30
 
Act);
 
 
“special educational provision” has the same meaning as it has
 
 
in Part 3 of the Children and Families Act 2014 (see section 21
 
 
of that Act).
 
 
(2)
References in this Part to a patient who lacks capacity are to a patient
35
 
who lacks capacity within the meaning of the Mental Capacity Act
 
 
2005.
 
 
(3)
In determining the ordinary residence of a person who is aged under
 
 
18 for the purposes of section 125A (3) (b) (iv) or 125D (2) , section 105(6)
 
 
of the Children Act 1989 applies as if there were inserted after
40
 
paragraph (c)—
 
 
“(d)
while the child is being provided with accommodation
 
 
under section 117 of the Mental Health Act 1983; or
 

Page 11

 
(e)
while the child is being provided with accommodation
 
 
under the National Health Service Act 2006.”
 
 
(4)
A person aged under 18 who—
 
 
(a)
does not have an ordinary residence, and
 
 
(b)
is living in a place listed in section 105(6) of the Children Act
5
 
1989, as modified by subsection (3) of this section,
 
 
is to be treated for the purposes of section 125A (3) (b) (iv) or 125D (2)
 
 
as ordinarily resident in the area in which they were present
 
 
immediately before living in such a place.
 
 
(5)
In determining the ordinary residence of a person who is aged 18 or
10
 
over for the purposes of section 125A (3) (b) (iv) , 125B (3) (b) (iv) or
 
 
125D (2) , section 39(1) to (6) of, and paragraphs 1(1), 2(1) and (2) and
 
 
8 of Schedule 1 to, the Care Act 2014 apply.
 

Grounds for detention and community treatment orders

 
5
Grounds for detention
15
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 2 (admission for assessment), in subsection (2)—
 
 
(a)
omit the “and” at the end of paragraph (a);
 
 
(b)
for paragraph (b) substitute—
 
 
“(b)
serious harm may be caused to the health or safety of
20
 
the patient or of another person unless the patient is so
 
 
detained; and
 
 
(c)
given the nature, degree and likelihood of the harm,
 
 
the patient ought to be so detained.”
 
 
(3)
In section 3 (admission for treatment)—
25
 
(a)
in subsection (2), for paragraphs (c) and (d) substitute—
 
 
“(b)
serious harm may be caused to the health or safety of
 
 
the patient or of another person unless the patient
 
 
receives medical treatment,
 
 
(c)
it is necessary, given the nature, degree and likelihood
30
 
of the harm, for the patient to receive medical treatment,
 
 
(d)
the necessary treatment cannot be provided unless the
 
 
patient is detained under this Act, and
 
 
(e)
appropriate medical treatment is available for the
 
 
patient.”;
35
 
(b)
in subsection (3)—
 
 
(i)
in paragraph (a), for “(d)” substitute “(e)”;
 
 
(ii)
in paragraph (b), for “(c)” substitute “(b) to (d)”.
 

Page 12

 
(4)
In section 5(4) (detention for six hours pending application for admission),
 
 
for paragraph (a) (but not the “and” at the end) substitute—
 
 
“(a)
that the patient is suffering from mental disorder to such a
 
 
degree that serious harm may be caused to the health or safety
 
 
of the patient or of another person unless the patient is
5
 
immediately restrained from leaving the hospital;”.
 
 
(5)
In section 20 (renewal of authority for detention of patient detained in
 
 
pursuance of application for admission for treatment etc), in subsection (4),
 
 
for paragraphs (c) and (d) substitute—
 
 
“(b)
serious harm may be caused to the health or safety of the
10
 
patient or of another person unless the patient receives medical
 
 
treatment,
 
 
(c)
it is necessary, given the nature, degree and likelihood of the
 
 
harm, for the patient to receive medical treatment,
 
 
(d)
the necessary treatment cannot be provided unless the patient
15
 
continues to be liable to be detained, and
 
 
(e)
appropriate medical treatment is available for the patient.”
 
 
(6)
The amendment made by subsection (5) , so far as relating to persons who
 
 
are liable to be detained by virtue of Part 3 of the Mental Health Act 1983,
 
 
applies in relation to such a person whether the person became so liable
20
 
before or after the coming into force of this section.
 
6
Grounds for community treatment orders
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 17A (community treatment orders)—
 
 
(a)
in subsection (5), for paragraphs (b) to (e) substitute—
25
 
“(b)
serious harm may be caused to the health or safety of
 
 
the patient or of another person unless the patient
 
 
receives medical treatment,
 
 
(c)
it is necessary, given the nature, degree and likelihood
 
 
of the harm, for the patient to receive medical treatment,
30
 
(d)
subject to the patient being liable to be recalled as
 
 
mentioned in paragraph (e) , the necessary treatment
 
 
can be provided without the patient being detained in
 
 
a hospital,
 
 
(e)
it is necessary that the responsible clinician should be
35
 
able to exercise the power under section 17E(1) to recall
 
 
the patient to hospital, and
 
 
(f)
appropriate medical treatment is available for the
 
 
patient.”
 
 
(b)
in subsection (6), for “(5)(d)” substitute “(5) (e) ”.
40
 
(3)
In section 20A (community treatment period)—
 
 
(a)
in subsection (4)(b), for “conditions set out in subsection (6) below are
 
 
satisfied” substitute “criteria in section 17A(5) are met”;
 

Page 13

 
(b)
omit subsection (6);
 
 
(c)
for subsection (7) substitute—
 
 
“(7)
Subsection (6) of section 17A applies for the purposes of
 
 
subsection (4)(b) of this section as it applies for the purposes
 
 
of subsection (4)(a) of that section.”;
5
 
(d)
in subsection (8)(a), for “conditions set out in subsection (6) above are
 
 
satisfied” substitute “criteria in section 17A(5) are met”.
 
 
(4)
The amendments made by subsection (2) , so far as relating to persons who
 
 
are liable to be detained by virtue of Part 3 of the Mental Health Act 1983,
 
 
apply in relation to such a person whether the person became so liable before
10
 
or after the coming into force of this section.
 
 
(5)
The amendments made by subsection (3) , so far as relating to persons who
 
 
are subject to community treatment orders (within the meaning given by
 
 
section 17A of the Mental Health Act 1983) by virtue of Part 3 of that Act,
 
 
apply in relation to such a person whether the person became subject to a
15
 
community treatment order before or after the coming into force of this section.
 
7
Grounds for discharge by tribunal
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 72 (powers of tribunals)—
 
 
(a)
in subsection (1)(a), for sub-paragraphs (i) and (ii) substitute “that the
20
 
grounds in section 2(2) are made out;”;
 
 
(b)
in subsection (1)(b), for sub-paragraphs (i) to (iia) (but not the “or” at
 
 
the end) substitute—
 
 
“(i)
that the conditions in section 20(4) are met;”;
 
 
(c)
in subsection (1)(c), for sub-paragraphs (i) to (iv) (but not the “or” at
25
 
the end) substitute—
 
 
“(i)
that the criteria in section 17A(5) are met;”;
 
 
(d)
in subsection (1A), for “whether the criterion in subsection (1)(c)(iii)
 
 
above” substitute “for the purposes of subsection (1)(c) (i) whether the
 
 
criterion in section 17A(5) (e) ”.
30
 
(3)
In section 73 (power to discharge restricted patients), in subsection (1)(a), for
 
 
“as to the matters mentioned in paragraph (b)(i), (ii) or (iia) of section 72(1)
 
 
above” substitute “that the conditions in section 20(4) are met”.
 
 
(4)
The amendments made by this section—
 
 
(a)
so far as relating to persons who are liable to be detained by virtue
35
 
of Part 3 of the Mental Health Act 1983, apply in relation to such a
 
 
person whether the person became so liable before or after the coming
 
 
into force of this section;
 
 
(b)
so far as relating to persons who are subject to community treatment
 
 
orders (within the meaning given by section 17A of the Mental Health
40
 
Act 1983) by virtue of Part 3 of that Act, apply in relation to such a
 

Page 14

 
person whether the person became subject to a community treatment
 
 
order before or after the coming into force of this section.
 

Appropriate medical treatment

 
8
Appropriate medical treatment: therapeutic benefit
 
 
(1)
The Mental Health Act 1983 is amended as follows.
5
 
(2)
In Part 1—
 
 
(a)
for the Part heading substitute “Introductory”;
 
 
(b)
after section 1 insert—
 
“1A
“Appropriate medical treatment”
 
 
In this Act—
10
 
(a)
references to appropriate medical treatment, in relation
 
 
to a person suffering from mental disorder, are
 
 
references to medical treatment which, taking into
 
 
account the nature and degree of the disorder and all
 
 
other circumstances—
15
 
(i)
has a reasonable prospect of alleviating, or
 
 
preventing the worsening of, the disorder or one
 
 
or more of its symptoms or manifestations, and
 
 
(ii)
is appropriate in the person’s case;
 
 
(b)
references to medical treatment, in relation to mental
20
 
disorder, are references to medical treatment the
 
 
purpose of which is to alleviate, or prevent a worsening
 
 
of, the disorder or one or more of its symptoms or
 
 
manifestations.”;
 
 
(c)
in section 3 (admission for treatment) omit subsection (4).
25
 
(3)
In section 57 (treatment requiring consent and a second opinion), in subsection
 
 
(2)(b), for “it is appropriate for the treatment to be given” substitute “the
 
 
treatment constitutes appropriate medical treatment”.
 
 
(4)
In section 58 (treatment requiring consent or a second opinion), in subsection
 
 
(3)(b), for “it is appropriate for the treatment to be given” substitute “the
30
 
treatment constitutes appropriate medical treatment”.
 
 
(5)
In section 58A (electro-convulsive therapy etc), in subsection (4)(c), for
 
 
sub-paragraph (ii) substitute—
 
 
“(ii)
that the treatment constitutes appropriate medical
 
 
treatment.”
35
 
(6)
In section 62A (treatment on recall of community patient or revocation of
 
 
order), in subsection (5)(a)—
 
 
(a)
omit “it is appropriate for”;
 
 
(b)
for “to be given to the patient” substitute “constitute appropriate
 
 
medical treatment”.
40

Page 15

 
(7)
In section 63 (treatment not requiring consent)—
 
 
(a)
the existing text becomes subsection (1);
 
 
(b)
in that subsection, after “patient”, insert “who is liable to be detained
 
 
in pursuance of an application for admission for assessment”;
 
 
(c)
after that subsection insert—
5
 
“(2)
The consent of any other patient is not required for any medical
 
 
treatment given to the patient for such disorder, not being a
 
 
form of treatment to which section 57, 58 or 58A above applies,
 
 
if—
 
 
(a)
the treatment is given by or under the direction of the
10
 
approved clinician in charge of the treatment, and
 
 
(b)
the approved clinician in charge of the treatment
 
 
considers that the treatment constitutes appropriate
 
 
medical treatment.”.
 
 
(8)
In section 64 (supplementary provisions for Part 4) omit subsection (3).
15
 
(9)
In section 64C (section 64B: supplemental), in subsection (4)(a), for “it is
 
 
appropriate for the treatment to be given or for the treatment to be” substitute
 
 
“the treatment constitutes appropriate medical treatment or constitutes
 
 
appropriate medical treatment if”.
 
 
(10)
In section 64K (interpretation of Part 4A) omit subsection (8).
20
 
(11)
In section 145 (interpretation)—
 
 
(a)
in subsection (1)—
 
 
(i)
at the appropriate place insert—
 
 
““appropriate medical treatment” is to be read in accordance
 
 
with section 1A (a) ;”;
25
 
(ii)
in the definition of “medical treatment”, for “(but see also
 
 
subsection (4) below)” substitute “; and references to medical
 
 
treatment are to be read in accordance with section 1A (b) ”;
 
 
(b)
omit subsection (1AB);
 
 
(c)
omit subsection (4).
30
9
Remission or release of prisoners etc from hospital: treatment condition
 
 
In the Mental Health Act 1983, in the following places, for “effective” substitute
 
 
“appropriate medical”—
 
 
section 50(1) (prisoners under sentence);
 
 
section 51(3)(b) and (4)(b) (detained persons);
35
 
section 52(5)(b) (persons remanded by magistrates’ courts);
 
 
section 53(2)(b) (civil prisoners and persons detained under the
 
 
Immigration Acts).
 

Page 16

The responsible clinician

 
10
Nomination of the responsible clinician
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 34(1) (interpretation of Part 2)—
 
 
(a)
at the appropriate place insert—
5
 
““the relevant hospital” means—
 
 
(a)
in relation to a patient who is liable to be detained in
 
 
a hospital, that hospital;
 
 
(b)
in relation to a community patient, the responsible
 
 
hospital;”;
10
 
(b)
in the definition of “the responsible clinician”, in paragraph (a), for
 
 
“with” substitute “nominated by the managers of the relevant hospital
 
 
to have”.
 
 
(3)
In the following places, after “would” insert “be nominated by the managers
 
 
of the hospital to”—
15
 
section 36(3) (remand for treatment only if admission is arranged);
 
 
section 37(4) (hospital order to be made only if admission is arranged);
 
 
section 38(4) (interim hospital order to be made only if admission is
 
 
arranged);
 
 
section 44(2) (evidence for admission to hospital by magistrates’ court);
20
 
section 45A(5) (hospital direction and limitation direction to be made
 
 
only if admission is arranged).
 
 
(4)
In section 55(1) (interpretation of Part 3), in the definition of “responsible
 
 
clinician”, for “with” substitute “nominated by the managers of the hospital
 
 
to have”.
25
 
(5)
In section 64 (supplementary provisions for Part 4), for subsection (1)
 
 
substitute—
 
 
“(1)
In this Part—
 
 
“hospital” includes a registered establishment;
 
 
“responsible clinician” means the responsible clinician within the
30
 
meaning of Part 2 (see section 34(1)).”
 
 
(6)
In section 134(1), in the words after paragraph (b), for “with” substitute
 
 
“nominated by the managers of the hospital to have”.
 

Treatment

 
11
Making treatment decisions
35
 
(1)
The Mental Health Act 1983 is amended as follows.
 

Page 17

 
(2)
After section 56 insert—
 
“56A
Making treatment decisions
 
 
(1)
In deciding whether to give medical treatment to a patient by virtue
 
 
of this Part, the approved clinician in charge of the treatment must—
 
 
(a)
identify and evaluate any alternative forms of medical treatment
5
 
available for the patient;
 
 
(b)
take such steps as are reasonably practicable to assist and
 
 
encourage the patient to participate, as fully as possible, in the
 
 
decision-making process;
 
 
(c)
not rely merely on—
10
 
(i)
the patient's age or appearance, or
 
 
(ii)
a condition of the patient’s, or an aspect of the patient’s
 
 
behaviour, which might lead others to make unjustified
 
 
assumptions about what medical treatment might be
 
 
appropriate for the patient;
15
 
(d)
consider the patient’s past and present wishes, feelings, beliefs
 
 
and values, so far as it is reasonable to regard them as relevant
 
 
and so far as they are reasonably ascertainable;
 
 
(e)
consider the relevant views of the following, so far as they are
 
 
reasonably ascertainable—
20
 
(i)
anyone named by the patient as someone to be
 
 
consulted on the decision in question, or decisions of
 
 
that kind;
 
 
(ii)
the patient’s nominated person and any independent
 
 
mental health advocate from whom the patient is
25
 
receiving help by virtue of section 130A or 130E;
 
 
(iii)
any donee or deputy for the patient;
 
 
(iv)
any other person who cares for the patient or is
 
 
interested in the patient’s welfare and whom the
 
 
approved clinician considers it appropriate to consult;
30
 
(f)
consider all other circumstances of which the approved clinician
 
 
is aware and which it would be reasonable to regard as
 
 
relevant.
 
 
(2)
Where the patient lacks capacity in relation to matters that, in the
 
 
opinion of the approved clinician, are relevant to the decision, the
35
 
approved clinician must also consider any wishes, feelings, views and
 
 
beliefs that the clinician thinks the patient would have in relation to
 
 
those matters but for the lack of capacity (including any relevant
 
 
written statement made by the patient when they had capacity).
 
 
(3)
In subsection (1) (e) , “relevant views” means—
40
 
(a)
views about the nature of the patient’s past and present wishes,
 
 
feelings, beliefs and values,
 
 
(b)
where the patient lacks capacity in relation to matters that, in
 
 
the opinion of the approved clinician, are relevant to the
 
 
decision, views about the nature of the wishes, feelings, views
45

Page 18

 
and beliefs the patient would have in relation to those matters
 
 
but for the lack of capacity, and
 
 
(c)
views about whether the medical treatment should be given
 
 
to the patient.”
 
 
(3)
In section 57 (treatment requiring consent and a second opinion), in subsection
5
 
(2)(b), at the end insert “, and that the decision to give the treatment was
 
 
made by the person in charge of the treatment in accordance with section
 
 
56A ”.
 
 
(4)
In section 58 (treatment requiring consent or a second opinion)—
 
 
(a)
in subsection (3)(a), at the end (but before the “; or”) insert “, and that
10
 
the decision to give the treatment was made by the approved clinician
 
 
in charge of the treatment in accordance with section 56A ”;
 
 
(b)
in subsection (3)(b), at the end insert “, and that the decision to give
 
 
the treatment was made by the approved clinician in charge of the
 
 
treatment in accordance with section 56A ”.
15
 
(5)
In section 58A (electro-convulsive therapy etc)—
 
 
(a)
in subsection (3)(c), at the end insert “, and that the decision to give
 
 
the treatment was made by the approved clinician in charge of the
 
 
treatment in accordance with section 56A ”;
 
 
(b)
in subsection (4)(c)—
20
 
(i)
omit the “and” at the end of sub-paragraph (i);
 
 
(ii)
at the end of sub-paragraph (ii) insert “; and”;
 
 
(iii)
after sub-paragraph (ii) insert—
 
 
“(iii)
that the decision to give the treatment
 
 
was made by the approved clinician in
25
 
charge of the treatment in accordance
 
 
with section 56A .”
 
12
Appointment of doctors to provide second opinions
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
After section 56A (inserted by section 11 of this Act) insert—
30
“56B
Appointment of doctors to provide second opinions
 
 
(1)
Where, in relation to a patient, a function under this Part is to be
 
 
performed by a “second opinion appointed doctor” (whether because
 
 
this Part requires it to be so performed or because a decision has been
 
 
made under this Part that it will be so performed)—
35
 
(a)
the relevant person must request that the regulatory authority
 
 
appoint a person to perform the function in relation to the
 
 
patient, and
 
 
(b)
on receiving the request, the regulatory authority must, as soon
 
 
as reasonably practicable (subject to section 62ZA (8) ), appoint
40
 
a person to perform the function in relation to the patient.
 
 
(2)
The person appointed by the regulatory authority—
 

Page 19

 
(a)
must be a registered medical practitioner, and
 
 
(b)
must not be the patient’s responsible clinician or the person
 
 
in charge of the treatment that is to be given to the patient.
 
 
(3)
In this section “the relevant person” means—
 
 
(a)
if there is a responsible clinician for the patient, the responsible
5
 
clinician;
 
 
(b)
otherwise, the person in charge of the treatment that is to be
 
 
given to the patient.”
 
 
(3)
In section 57 (treatment requiring consent and a second opinion)—
 
 
(a)
in subsection (2)(a), for the words from the beginning to “question)”
10
 
substitute “a second opinion appointed doctor”;
 
 
(b)
in subsection (2)(b), for the words from the beginning to “above”
 
 
substitute “the second opinion appointed doctor”;
 
 
(c)
in subsection (3), for “the registered medical practitioner concerned”
 
 
substitute “the second opinion appointed doctor”.
15
 
(4)
In section 58 (treatment requiring consent or a second opinion)—
 
 
(a)
in subsection (3)(a), for the words from “a registered” to “authority”
 
 
substitute “a second opinion appointed doctor”;
 
 
(b)
in subsection (3)(b), for the words from the beginning to “question)”
 
 
substitute “a second opinion appointed doctor”.
20
 
(5)
In section 58A (electro-convulsive therapy etc)—
 
 
(a)
in subsection (3)(c), for the words from “a registered” to “above”
 
 
substitute “a second opinion appointed doctor”;
 
 
(b)
in subsection (4)(c), for the words from the beginning to “treatment)”
 
 
substitute “a second opinion appointed doctor”;
25
 
(c)
in subsection (6), in the words before paragraph (a), for “the registered
 
 
medical practitioner” substitute “the second opinion appointed doctor”.
 
 
(6)
In section 64 (supplementary provisions for Part 4), in subsection (1) (as
 
 
substituted by section 10 of this Act), at the appropriate place insert—
 
 
““second opinion appointed doctor” is to be read in accordance with
30
 
section 56B”.
 
 
(7)
In section 64C (section 64B: supplemental)—
 
 
(a)
in subsection (4)(a), for the words from the beginning to “treatment)”
 
 
substitute “a second opinion appointed doctor”;
 
 
(b)
after subsection (9) insert—
35
 
“(10)
In this section “second opinion appointed doctor” has the same
 
 
meaning as in Part 4 (see section 64).”
 
 
(8)
In section 119 (practitioners approved for Part 4 and section 118), in subsection
 
 
(1), after “Act” insert “(see section 56B )”.
 

Page 20

 
13
Medicine etc: treatment conflicting with a decision by or on behalf of a
 

patient

 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
After section 57 insert—
 
 
“57A
Treatment without consent requiring a second opinion and a
5
 
compelling reason
 
 
(1)
This section applies to the forms of medical treatment for relevant
 
 
disorder mentioned in subsection (2) where—
 
 
(a)
the patient has capacity to consent to the treatment but has not
 
 
consented to it, or
10
 
(b)
the patient lacks capacity to consent to the treatment, and the
 
 
giving of the treatment would conflict with—
 
 
(i)
a valid and applicable advance decision, or
 
 
(ii)
a decision of a donee or deputy or the Court of
 
 
Protection.
15
 
(2)
The forms of medical treatment referred to in subsection (1) are—
 
 
(a)
such forms of treatment as may be specified in regulations
 
 
made under section 58(1)(a);
 
 
(b)
the administration of medicine to a patient by any means (not
 
 
being a form of treatment specified under section 57, section
20
 
58(1)(a) or section 58A(1)(b)) at any time during a period for
 
 
which the patient is liable to be detained as a patient to whom
 
 
this Part of this Act applies.
 
 
(3)
Where this section applies, and subject to section 62, a patient may
 
 
not be given any of those forms of medical treatment unless there is
25
 
a compelling reason to give treatment of that form and a second
 
 
opinion appointed doctor has certified in writing—
 
 
(a)
that the treatment constitutes appropriate medical treatment,
 
 
(b)
that the decision to give the treatment was made by the
 
 
approved clinician in charge of the treatment in accordance
30
 
with section 56A , and
 
 
(c)
that, in relation to the form of treatment and any alternative
 
 
forms of appropriate medical treatment that are available for
 
 
the patient’s relevant disorder (taking each form of treatment
 
 
separately)—
35
 
(i)
the patient has capacity to consent but has not
 
 
consented, or
 
 
(ii)
the patient lacks capacity to consent and it appears to
 
 
the second opinion appointed doctor that there is a
 
 
decision mentioned in subsection (1) (b) (i) or (ii) which,
40
 
if valid, would conflict with the giving of the treatment.
 
 
(4)
For the purposes of this section there is a “compelling reason” to give
 
 
a form of medical treatment to a patient if—
 

Page 21

 
(a)
alternative forms of appropriate medical treatment are available
 
 
for the patient’s relevant disorder but, in relation to each of
 
 
those forms—
 
 
(i)
the patient has not consented, or
 
 
(ii)
the patient lacks capacity to consent and the giving of
5
 
the treatment would conflict with a decision mentioned
 
 
in subsection (1) (b) (i) or (ii) , or
 
 
(b)
no alternative forms of appropriate medical treatment are
 
 
available for the patient’s relevant disorder.
 
 
(5)
Before giving a certificate under subsection (3) the second opinion
10
 
appointed doctor must consult two other persons who have been
 
 
professionally concerned with the patient’s medical treatment but, of
 
 
those persons—
 
 
(a)
one must be a nurse and the other must be neither a nurse nor
 
 
a registered medical practitioner, and
15
 
(b)
neither may be the responsible clinician or the approved
 
 
clinician in charge of the treatment in question.”
 
 
(3)
In section 58 (treatment requiring consent or a second opinion)—
 
 
(a)
before subsection (1) insert—
 
 
“(A1)
This section applies to the forms of medical treatment for
20
 
relevant disorder mentioned in subsection (1) where—
 
 
(a)
the patient has capacity to consent to the treatment and
 
 
has consented to it, or
 
 
(b)
the patient lacks capacity to consent to the treatment
 
 
and the giving of the treatment would not conflict
25
 
with—
 
 
(i)
any valid and applicable advance decision, or
 
 
(ii)
any decision of a donee or deputy or the Court
 
 
of Protection.”;
 
 
(b)
in subsection (1), for the words before paragraph (a) substitute “The
30
 
forms of medical treatment referred to in subsection (A1) are—”;
 
 
(c)
in subsection (3)(b) omit “or being so capable has not consented to it”.
 
 
(4)
In section 59 (plans of treatment), after “57” insert “, 57A”.
 
 
(5)
In section 60 (withdrawal of consent), in subsection (1C)(a), after “section”
 
 
insert “57A,”.
35
 
(6)
In section 62 (urgent treatment), in subsection (2), after “57” insert “, 57A”.
 
 
(7)
In section 63 (treatment not requiring consent), for the words from “not”, in
 
 
the second place it occurs, to “applies” substitute “where none of sections 57
 
 
to 58A apply”.
 
 
(8)
In section 64C (section 64B: supplemental)—
40
 
(a)
for subsection (3) substitute—
 
 
“(3)
Relevant treatment is—
 
 
(a)
section 58 type treatment if it is—
 

Page 22

 
(i)
treatment of a form which, at the time when it
 
 
is given to the patient, is specified under section
 
 
58(1)(a), or
 
 
(ii)
the administration of medicine to the patient by
 
 
any means (not being a form of treatment
5
 
specified under section 57, section 58(1)(a) or
 
 
section 58A(1)(b)) if a period equal to or longer
 
 
than the section 58 period has elapsed since the
 
 
first occasion, during the relevant period, when
 
 
medicine was administered to the patient by any
10
 
means for relevant disorder;
 
 
(b)
section 58A type treatment if it is—
 
 
(i)
electro-convulsive therapy, or
 
 
(ii)
treatment of a form which, at the time when it
 
 
is given to the patient, is specified under section
15
 
58A(1)(b).
 
 
(3A)
For the purposes of subsection (3)—
 
 
(a)
the “section 58 period” is the period which, at the time
 
 
when the treatment is given to the patient, is specified
 
 
under section 58(1)(b);
20
 
(b)
the “relevant period” is the period during which the
 
 
patient has continuously been a patient to whom this
 
 
Part applies.”;
 
 
(b)
in subsection (6), for “subsection (1)(a) of that section” substitute
 
 
“subsection (3) (b) (i) of this section”;
25
 
(c)
in subsection (7)—
 
 
(i)
for “subsection (1)(b) of that section” substitute “subsection
 
 
(3) (b) (ii) of this section”;
 
 
(ii)
for “that section”, in the second place it occurs, substitute
 
 
“section 58A(1)(b)”.
30
14
Medicine etc: treatment in other circumstances
 
 
In section 58 of the Mental Health Act 1983 (treatment requiring consent or
 
 
a second opinion)—
 
 
(a)
in subsection (1)(b), for “three” substitute “two”;
 
 
(b)
in subsection (3)(a), after “has consented to it” insert “, that the
35
 
treatment constitutes appropriate medical treatment”;
 
 
(c)
in subsection (4), for “(3)(b) above the registered medical practitioner
 
 
concerned” substitute “(3) the person giving the certificate”.
 
15
Electro-convulsive therapy etc
 
 
In section 58A of the Mental Health Act 1983 (electro-convulsive therapy etc),
40
 
for subsection (5) substitute—
 
 
“(5)
A patient falls within this subsection if—
 

Page 23

 
(a)
the patient lacks capacity to consent to the treatment and the
 
 
giving of the treatment would not conflict with—
 
 
(i)
any valid and applicable advance decision, or
 
 
(ii)
any decision of a donee or deputy or the Court of
 
 
Protection, and
5
 
(b)
a second opinion appointed doctor has certified in writing—
 
 
(i)
that the patient lacks capacity to consent to the
 
 
treatment,
 
 
(ii)
that the treatment constitutes appropriate medical
 
 
treatment, and
10
 
(iii)
that the decision to give the treatment was made by
 
 
the approved clinician in charge of the treatment in
 
 
accordance with section 56A .”
 
16
Review of treatment
 
 
(1)
The Mental Health Act 1983 is amended as follows.
15
 
(2)
In section 61 (review of treatment)—
 
 
(a)
in subsection (1)—
 
 
(i)
in the words before paragraph (a), for “58(3)(b) or 58A(4) or
 
 
(5)” substitute “57A(3), 58(3)(b) or 58A(5)”;
 
 
(ii)
in paragraph (a), after “patient” insert “, except that, in the case
20
 
of a patient who is liable to be detained in pursuance of an
 
 
application for admission for treatment, no report is required
 
 
under this subsection on the first occasion on which the
 
 
responsible clinician furnishes a report under section 20(3) in
 
 
respect of them”;
25
 
(b)
after subsection (1) insert—
 
 
“(1A)
Where a patient is given treatment in accordance with section
 
 
58(3)(a) or 58A(3) or (4), a report on the treatment and the
 
 
patient’s condition must be given by the approved clinician in
 
 
charge of the treatment to the regulatory authority at any time,
30
 
if so required by the regulatory authority.
 
 
(1B)
In relation to a patient to whom paragraph 5B or 5D of Part 1
 
 
of Schedule 1 applies, subsection (1) has effect as if, in
 
 
paragraph (a), for the words “application for admission for
 
 
treatment” there were substituted “order under Part 3 of this
35
 
Act”.
 
 
(1C)
In relation to a patient to whom paragraph 5C or 6 of Part 1
 
 
of Schedule 1 applies, subsection (1) has effect as if, in
 
 
paragraph (a), the words from “, except that” to the end of that
 
 
paragraph were omitted.”;
40
 
(c)
in subsection (3)—
 
 
(i)
for “58(3)(b)” substitute “57A(3), 58(3)”;
 
 
(ii)
for “58A(4)” substitute “58A(3), (4)”;
 
 
(iii)
for “sections 57” substitute “sections 57, 57A”.
 

Page 24

 
(3)
In section 55, in subsection (4), after “section 42 above or” insert “section
 
 
61 (1B) or”.
 
17
Urgent treatment to alleviate serious suffering
 
 
In section 62 of the Mental Health Act 1983 (urgent treatment)—
 
 
(a)
in subsection (1), for “Sections 57 and 58” substitute “Section 57”;
5
 
(b)
after subsection (1) insert—
 
 
“(1ZA)
Sections 57A and 58 do not apply to—
 
 
(a)
any treatment which falls within paragraphs (a), (b) or
 
 
(d) of subsection (1), or
 
 
(b)
any treatment which falls within paragraph (c) of
10
 
subsection (1) and is given to a patient who lacks
 
 
capacity to consent to the treatment.”
 
18
Urgent electro-convulsive therapy etc
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 58A (electro-convulsive therapy etc), in subsection (2), for “section
15
 
62” substitute “section 62ZA”.
 
 
(3)
In section 62 (urgent treatment) omit subsections (1A) to (1C).
 
 
(4)
After section 62 insert—
 
“62ZA
Urgent treatment: electro-convulsive therapy, etc.
 
 
(1)
This section applies instead of section 58A—
20
 
(a)
to any treatment with electro-convulsive therapy where—
 
 
(i)
the treatment is immediately necessary to save the
 
 
patient’s life, or
 
 
(ii)
the treatment is not irreversible and is immediately
 
 
necessary to prevent a serious deterioration of the
25
 
patient’s condition;
 
 
(b)
to any treatment of a form specified under section 58A(1)(b),
 
 
where the treatment falls within such of paragraphs (a) to (d)
 
 
of section 62(1) as may be specified in regulations under section
 
 
58A(1)(b).
30
 
(2)
The treatment may be given to a patient who has capacity to consent
 
 
to the treatment, but has not consented to it, only if a certificate has
 
 
been given by a second opinion appointed doctor under subsection
 
 
(4) .
 
 
(3)
The treatment may be given to a patient who lacks capacity to consent
35
 
to the treatment, where the giving of the treatment would conflict
 
 
with—
 
 
(a)
any valid and applicable advance decision, or
 
 
(b)
any decision of a donee or deputy or the Court of Protection,
 

Page 25

 
only if a certificate has been given by a second opinion appointed
 
 
doctor under subsection (5) .
 
 
(4)
A certificate under this subsection is a certificate stating—
 
 
(a)
that the patient has capacity to consent to the treatment but
 
 
has not consented to it,
5
 
(b)
that the decision to give the treatment was made by the
 
 
approved clinician in charge of the treatment in accordance
 
 
with section 56A ,
 
 
(c)
where the treatment is electro-convulsive therapy, that the
 
 
treatment—
10
 
(i)
is immediately necessary to save the patient’s life, or
 
 
(ii)
is not irreversible and is immediately necessary to
 
 
prevent a serious deterioration of the patient’s condition,
 
 
and
 
 
(d)
where the treatment is of a form specified under section
15
 
58A(1)(b), which of the paragraphs of section 62(1) it falls
 
 
within (see subsection (1) (b) ).
 
 
(5)
A certificate under this subsection is a certificate stating —
 
 
(a)
that the patient lacks capacity to consent to the treatment and
 
 
it appears to the second opinion appointed doctor that there
20
 
is a decision mentioned in subsection (3) (a) or (b) which, if
 
 
valid, would conflict with the giving of the treatment,
 
 
(b)
that the decision to give the treatment was made by the
 
 
approved clinician in charge of the treatment in accordance
 
 
with section 56A ,
25
 
(c)
where the treatment is electro-convulsive therapy, that the
 
 
treatment—
 
 
(i)
is immediately necessary to save the patient’s life, or
 
 
(ii)
is not irreversible and is immediately necessary to
 
 
prevent a serious deterioration of the patient’s condition,
30
 
and
 
 
(d)
where the treatment is of a form specified under section
 
 
58A(1)(b), which of the paragraphs of section 62(1) it falls
 
 
within (see subsection (1) (b) ).
 
 
(6)
Before giving a certificate under this section, the second opinion
35
 
appointed doctor must, if it is practicable to do so within any period
 
 
specified under section 62ZB (2) , consult—
 
 
(a)
a nurse who has been professionally concerned with the
 
 
patient's medical treatment and is neither the responsible
 
 
clinician nor the approved clinician in charge of the treatment
40
 
in question, and
 
 
(b)
the patient’s nominated person.
 
 
(7)
Any request under section 56B for the appointment of a second opinion
 
 
doctor in relation to the function of giving a certificate under this
 
 
section must be made by the relevant person (within the meaning of
45
 
section 56B ) as soon as reasonably practicable.
 

Page 26

 
(8)
The regulatory authority must, on receiving such a request, make the
 
 
appointment under section 56B as soon as practicable.
 
 
(9)
Subsection (3) of section 62 applies for the purposes of this section as
 
 
it applies for the purposes of that section.
 
62ZB
Section
5
 
(1)
The appropriate national authority may by regulations amend this Act
 
 
to provide for circumstances in which functions of a second opinion
 
 
appointed doctor in relation to treatment falling within section 62ZA (1)
 
 
may or must be carried out instead by the approved clinician in charge
 
 
of the treatment in question.
10
 
(2)
The appropriate national authority may by regulations impose duties
 
 
on—
 
 
(a)
the managers of hospitals or registered establishments,
 
 
(b)
approved clinicians, or
 
 
(c)
the regulatory authority,
15
 
for the purpose of ensuring that a certificate given under section 62ZA
 
 
or by virtue of regulations under subsection (1) is given within a
 
 
period specified in the regulations.
 
 
(3)
Regulations under this section may make—
 
 
(a)
provision subject to specified exceptions;
20
 
(b)
different provision for different cases;
 
 
(c)
transitional, consequential, incidental or supplemental
 
 
provision.”
 
 
(5)
In section 64 (supplementary provisions for Part 4), in subsection (1) (as
 
 
substituted by section 10 of this Act), at the appropriate place insert—
25
 
““the appropriate national authority” has the meaning given by section
 
 
58A(10);”.
 
 
(6)
In section 118 (code of practice), in subsection (1), after paragraph (d) (as
 
 
inserted by Schedule 3 to this Act) insert—
 
 
“(e)
for the guidance of the regulatory authority in relation to its
30
 
functions under or by virtue of Part 4; and”.
 
 
(7)
In section 119 (practitioners approved for Part 4 and section 118)—
 
 
(a)
after subsection (2) insert—
 
 
“(2A)
An interview or examination by a registered medical
 
 
practitioner under subsection (2) for the purposes of section
35
 
62ZA may be carried out, to the extent that the registered
 
 
medical practitioner considers appropriate—
 
 
(a)
by live video link, or
 
 
(b)
by live audio link.”;
 

Page 27

 
(b)
in subsection (3), before the definition of “regulated establishment”
 
 
insert—
 
 
““live audio link” means a live telephone link or other arrangement
 
 
which—
 
 
(a)
enables a patient to hear a registered medical
5
 
practitioner, and
 
 
(b)
enables a registered medical practitioner to hear the
 
 
patient;
 
 
“live video link” means a live television link or other arrangement
 
 
which—
10
 
(a)
enables a patient to see and hear a registered medical
 
 
practitioner, and
 
 
(b)
enables the registered medical practitioner to see and
 
 
hear the patient;”.
 
 
(8)
In relation to the procedure for regulation-making powers inserted by this
15
 
section, see section 50 .
 
19
Capacity to consent to treatment
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 57 (treatment requiring consent and a second opinion), in subsection
 
 
(2)(a), for “is capable of understanding the nature, purpose and likely effects
20
 
of” substitute “has capacity to consent to”.
 
 
(3)
In section 58 (treatment requiring consent or a second opinion), in subsection
 
 
(3)—
 
 
(a)
in paragraph (a), for “is capable of understanding its nature, purpose
 
 
and likely effects” substitute “has capacity to consent to it”;
25
 
(b)
in paragraph (b), for “is not capable of understanding the nature,
 
 
purpose and likely effects of” substitute “lacks capacity to consent to”.
 
 
(4)
In section 58A (electro-convulsive therapy etc)—
 
 
(a)
in subsection (3)(c), for “is capable of understanding the nature,
 
 
purpose and likely effects of” substitute “has capacity to consent to”;
30
 
(b)
in subsection (4)(c), for sub-paragraph (i) (but not the “and” at the
 
 
end) substitute—
 
 
“(i)
that the patient has capacity to consent to the
 
 
treatment and has consented to it,”;
 
 
(c)
in subsection (7), for the words from “is not” to the end substitute
35
 
“lacks capacity to consent to the treatment”;
 
 
(d)
omit subsection (9).
 
 
(5)
In section 60 (withdrawal of consent)—
 
 
(a)
in subsection (1A)(b), for the words from “be” to the end substitute
 
 
“have capacity to consent to the treatment”;
40
 
(b)
in subsection (1C)—
 

Page 28

 
(i)
in paragraph (a), for the words from “is not” to “effects of”
 
 
substitute “lacks capacity to consent to”;
 
 
(ii)
in paragraph (b), for the words from “becomes” to the end
 
 
substitute “gains capacity to consent to that treatment”.
 
 
(6)
In section 64 (supplementary provisions for Part 4), after subsection (1B)
5
 
insert—
 
 
“(1BA)
In relation to a patient who is aged under 16, references in this Part
 
 
to capacity are to be read as references to competence.
 
 
(1BB)
In relation to a patient who is aged 16 or over—
 
 
(a)
references in this Part to lacking capacity are to lacking capacity
10
 
within the meaning of the Mental Capacity Act 2005, and
 
 
(b)
references in this Part to having, ceasing to have or gaining
 
 
capacity are to be read accordingly.
 
 
(1BC)
References in this Part—
 
 
(a)
to an advance decision are to an advance decision (within the
15
 
meaning of the Mental Capacity Act 2005) made by the patient;
 
 
(b)
to a donee are to a donee of a lasting power of attorney (within
 
 
the meaning of section 9 of the Mental Capacity Act 2005)
 
 
created by the patient, where the donee is acting within the
 
 
scope of their authority and in accordance with that Act;
20
 
(c)
to a deputy are to a deputy appointed for the patient by the
 
 
Court of Protection under section 16 of the Mental Capacity
 
 
Act 2005, where the deputy is acting within the scope of their
 
 
authority and in accordance with that Act.
 
 
(1BD)
In this Part “valid and applicable”, in relation to an advance decision,
25
 
means valid and applicable to the treatment in question in accordance
 
 
with section 25 of the Mental Capacity Act 2005.”
 
20
Care and treatment plans
 
 
In the Mental Health Act 1983, in Part 10, before section 130A insert—
 
“130ZA
Care and treatment plans for patients in England
30
 
(1)
The appropriate practitioner must prepare a care and treatment plan
 
 
for a patient to whom this section applies.
 
 
(2)
This section applies to a patient who—
 
 
(a)
is liable to be detained under this Act in a hospital or registered
 
 
establishment in England otherwise than—
35
 
(i)
by virtue of an emergency application where the second
 
 
medical recommendation referred to in section 4(4)(a)
 
 
has not been given and received, or
 
 
(ii)
by virtue of section 5(2) or (4), 135 or 136 or directions
 
 
for detention in a place of safety under section 35(4),
40
 
36(3), 37(4), 38(4) or 45A(5),
 

Page 29

 
(b)
is subject to guardianship under this Act, if the area of the
 
 
responsible local social services authority is in England, or
 
 
(c)
is a community patient, if the responsible hospital is in England.
 
 
(3)
A “care and treatment plan” is a document—
 
 
(a)
containing a plan, made in accordance with regulations made
5
 
by the Secretary of State, for meeting the patient’s needs arising
 
 
from or related to mental disorder, and
 
 
(b)
containing, or to which is attached, any other information
 
 
authorised or required by the regulations.
 
 
(4)
The information authorised or required to be included in, or attached
10
 
to, a care and treatment plan by virtue of regulations under subsection
 
 
(3) may include—
 
 
(a)
information about people with whom a patient has a
 
 
relationship or other connection, or to whom a care and
 
 
treatment plan is relevant, for purposes related to—
15
 
(i)
the meeting of the patient’s needs mentioned in
 
 
subsection (3) (a) , or
 
 
(ii)
the review or revision of the care and treatment plan;
 
 
(b)
any information contained in a report prepared in accordance
 
 
with section 125A or 125B .
20
 
(5)
The appropriate practitioner must review a care and treatment plan—
 
 
(a)
following any meeting relating to the patient under section
 
 
125A or 125B ;
 
 
(b)
following any change in the relevant patient’s condition or
 
 
circumstances which the appropriate practitioner considers
25
 
significant;
 
 
(c)
if the appropriate practitioner is considering whether the
 
 
relevant patient should—
 
 
(i)
become liable to be detained by virtue of a different
 
 
provision of this Act,
30
 
(ii)
become subject to guardianship under this Act,
 
 
(iii)
become a community patient, or
 
 
(iv)
be discharged under section 23;
 
 
(d)
if the appropriate practitioner is notified that the patient’s case
 
 
is to be considered by a tribunal under this Act;
35
 
(e)
if requested to do so by virtue of section 130ZB (3) ;
 
 
(f)
if reasonably requested to do so by—
 
 
(i)
the relevant patient;
 
 
(ii)
anyone named by the relevant patient as someone to
 
 
be consulted about their care and treatment plan;
40
 
(iii)
the relevant patient’s nominated person;
 
 
(iv)
any independent mental health advocate from whom
 
 
the relevant patient is receiving help by virtue of section
 
 
130A;
 
 
(v)
any donee or deputy for the relevant patient;
45

Page 30

 
(vi)
any other person who cares for the relevant patient or
 
 
is interested in the relevant patient’s welfare.
 
 
(6)
When preparing or reviewing a care and treatment plan, the
 
 
appropriate practitioner must, if it is practicable and appropriate to
 
 
do so, consult the persons mentioned in subsection (5) (f) .
5
 
(7)
The Secretary of State may by regulations make provision—
 
 
(a)
requiring a care and treatment plan to be revised in specified
 
 
circumstances;
 
 
(b)
specifying, in relation to cases in which a care and treatment
 
 
plan must be prepared, reviewed or revised, when that must
10
 
be done.
 
 
(8)
The Secretary of State may by regulations make provision about—
 
 
(a)
disclosure of information contained in a care and treatment
 
 
plan;
 
 
(b)
disclosure of other information for the purposes of functions
15
 
under this section.
 
 
(9)
Regulations under this section may make—
 
 
(a)
provision subject to specified exceptions;
 
 
(b)
different provision for different cases;
 
 
(c)
transitional, consequential, incidental or supplemental provision.
20
 
(10)
References in this section—
 
 
(a)
to a donee for a patient are to a donee of a lasting power of
 
 
attorney (within the meaning of section 9 of the Mental
 
 
Capacity Act 2005) created by the patient;
 
 
(b)
to a deputy for a patient are to a deputy appointed for the
25
 
patient by the Court of Protection under section 16 of the
 
 
Mental Capacity Act 2005;
 
 
(c)
to the responsible local social services authority—
 
 
(i)
in relation to a patient who is subject to guardianship
 
 
in pursuance of a guardianship application, are to be
30
 
read in accordance with section 34(3);
 
 
(ii)
in relation to a patient who is subject to guardianship
 
 
in pursuance of a guardianship order under section 37,
 
 
are to the local social services authority specified in the
 
 
order.
35
 
(11)
In this section “the appropriate practitioner” has the same meaning
 
 
as in Part 2 (see section 34(1)).
 
130ZB
Care and treatment plans: monitoring
 
 
(1)
The managers of a hospital or registered establishment in England
 
 
must make arrangements for the monitoring of compliance with the
40
 
duties imposed by section 130ZA in relation to relevant patients for
 
 
whom the managers are responsible.
 

Page 31

 
(2)
A local social services authority whose area is in England must make
 
 
arrangements for the monitoring of compliance with the duties imposed
 
 
by section 130ZA in relation to relevant patients for whom the
 
 
authority is the responsible local social services authority.
 
 
(3)
Arrangements under subsection (1) or (2) must include arrangements
5
 
for the appropriate practitioner, in relation to a relevant patient, to be
 
 
requested to review the patient’s care and treatment plan where the
 
 
managers or local social services authority (as the case may be) consider
 
 
that the care and treatment plan should be reviewed.
 
 
(4)
For the purposes of subsection (1) the managers of a hospital or
10
 
registered establishment are “responsible” for a relevant patient if the
 
 
patient—
 
 
(a)
is liable to be detained under this Act in the hospital or
 
 
registered establishment, or
 
 
(b)
is a community patient for whom the hospital or registered
15
 
establishment is the responsible hospital.
 
 
(5)
The reference in subsection (2) to the responsible local social services
 
 
authority is to be read in accordance with section 130ZA (10) (c) .
 
 
(6)
In this section—
 
 
“the appropriate practitioner” has the same meaning as in Part 2
20
 
(see section 34(1));
 
 
“care and treatment plan” has the meaning given by section
 
 
130ZA (3) ;
 
 
“relevant patient” means a patient to whom section 130ZA
 
 
applies.”
25

Community treatment orders

 
21
Consultation of the community clinician
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 17A(4) (grounds for making community treatment orders)—
 
 
(a)
omit the “and” at the end of paragraph (a);
30
 
(b)
for paragraph (b) substitute—
 
 
“(b)
an approved mental health professional states in
 
 
writing—
 
 
(i)
that they agree that the relevant criteria are met;
 
 
and
35
 
(ii)
that it is appropriate to make the order; and
 
 
(c)
where the responsible clinician is not the community
 
 
clinician, the community clinician states in writing that
 
 
they agree that the relevant criteria are met.”
 
 
(3)
In section 17B (conditions of community treatment orders)—
40

Page 32

 
(a)
in subsection (2), for the words from “approved” to “above” substitute
 
 
“relevant professionals”;
 
 
(b)
after subsection (5) insert—
 
 
“(5A)
Where the responsible clinician is not the community clinician,
 
 
the responsible clinician must consult the community clinician
5
 
before varying or suspending conditions specified in a
 
 
community treatment order, unless consultation would involve
 
 
unreasonable delay.”;
 
 
(c)
after subsection (7) insert—
 
 
“(8)
In this section “the relevant professionals” means—
10
 
(a)
the approved mental health professional making the
 
 
statement required by section 17A(4)(b), and
 
 
(b)
where section 17A(4)(c) applies, the community
 
 
clinician.”
 
 
(4)
In section 17E (power to recall a community patient to hospital), after
15
 
subsection (2) insert—
 
 
“(2A)
Where the responsible clinician is not the community clinician, the
 
 
responsible clinician must consult the community clinician before
 
 
recalling a community patient to hospital, unless consultation would
 
 
involve unreasonable delay.”
20
 
(5)
In section 17F (powers in respect of recalled patients), after subsection (4)
 
 
insert—
 
 
“(4A)
Where the responsible clinician is not the community clinician, the
 
 
responsible clinician must consult the community clinician before
 
 
revoking a community treatment order, unless consultation would
25
 
involve unreasonable delay.”
 
 
(6)
In section 20A (community treatment period)—
 
 
(a)
in subsection (4)(b), for “under subsection (8) below is made,” substitute
 
 
“has been made—
 
 
“(i)
under subsection (8), and
30
 
(ii)
where the responsible clinician is not the
 
 
community clinician, under subsection (8A),”;
 
 
(b)
in subsection (8), after “(4)” insert “(b)(i)”;
 
 
(c)
after subsection (8) insert—
 
 
“(8A)
The statement referred to in subsection (4)(b)(ii) is a statement
35
 
in writing by the community clinician that it appears to the
 
 
community clinician that the conditions set out in subsection
 
 
(6) are satisfied.”;
 
 
(d)
omit subsection (9).
 
 
(7)
In section 34(1) (interpretation of Part 2), at the appropriate place insert—
40
 
““the community clinician” means—
 

Page 33

 
(a)
in relation to a patient who is liable to be detained in a hospital
 
 
in pursuance of an application for admission for treatment, the
 
 
approved clinician who would oversee the patient’s care if
 
 
they were to become a community patient;
 
 
(b)
in relation to a community patient, the approved clinician
5
 
overseeing the patient’s care as a community patient;”.
 
 
(8)
In section 80C (removal of patients subject to compulsion in the community
 
 
from Scotland)—
 
 
(a)
in subsection (6), for “an approved mental health professional agrees”
 
 
substitute “the relevant professionals agree”;
10
 
(b)
after subsection (6) insert—
 
 
“(7)
In this section “the relevant professionals” means—
 
 
(a)
an approved mental health professional, and
 
 
(b)
where the responsible clinician is not the community
 
 
clinician, the community clinician.”
15
 
(9)
In section 85ZA (responsibility for community patients transferred from
 
 
Channel Islands or Isle of Man)—
 
 
(a)
in subsection (5), for “an approved mental health professional agrees”
 
 
substitute “the relevant professionals agree”;
 
 
(b)
after subsection (5) insert—
20
 
“(6)
In this section “the relevant professionals” means—
 
 
(a)
an approved mental health professional, and
 
 
(b)
where the responsible clinician is not the community
 
 
clinician, the community clinician.”
 
 
(10)
In section 92 (interpretation of Part 6), after subsection (1A) insert—
25
 
“(1B)
References in this Part to the community clinician are to be construed
 
 
as references to the community clinician within the meaning of Part
 
 
2.”
 
22
Conditions of community treatment orders
 
 
(1)
In section 17B(2) of the Mental Health Act 1983 (conditions of community
30
 
treatment orders) omit “or appropriate”.
 
 
(2)
In section 72 of that Act (powers of tribunals), after subsection (3A) insert—
 
 
“(3B)
Where a tribunal does not direct the discharge of a community patient,
 
 
the tribunal may recommend that the responsible clinician reconsider
 
 
whether a condition specified in the community treatment order is
35
 
necessary.”
 

Nominated persons

 
23
Nominated person
 
 
Schedule 2 contains amendments of the Mental Health Act 1983 which—
 

Page 34

 
(a)
make provision about the appointment of a nominated person for a
 
 
patient,
 
 
(b)
transfer to nominated persons functions currently conferred on patients’
 
 
nearest relatives, and
 
 
(c)
confer functions on nominated persons for certain patients concerned
5
 
in criminal proceedings.
 
24
Applications for admission or guardianship: role of nominated person
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 11 (general provisions about applications for admission or
 
 
guardianship), for subsection (4) substitute—
10
 
“(4)
Before an approved mental health professional makes an application
 
 
for admission for treatment or a guardianship application in respect
 
 
of a patient who appears to have a nominated person, the professional
 
 
must consult that person.
 
 
(4A)
But the consultation requirement imposed by subsection (4) does not
15
 
apply if it appears to the approved mental health professional that
 
 
consultation—
 
 
(a)
is not reasonably practicable, or
 
 
(b)
would involve unreasonable delay.
 
 
(4B)
A patient’s nominated person may object to the making of an
20
 
application for admission for treatment or the making of a
 
 
guardianship application by an approved mental health professional
 
 
by—
 
 
(a)
notifying the professional, or
 
 
(b)
notifying the local social services authority on whose behalf
25
 
the professional is acting.
 
 
(4C)
Where a nominated person objects under subsection (4B) to the making
 
 
of an application, the application may be made only if it is
 
 
accompanied by a report certifying that, in the opinion of the approved
 
 
mental health professional, the patient, if not admitted for treatment
30
 
or received into guardianship, would be likely to act in a manner that
 
 
is dangerous to other persons or to the patient.”
 
 
(3)
In section 20 (duration of authority)—
 
 
(a)
in subsection (5)—
 
 
(i)
the words from “one” to the end become paragraph (a), and
35
 
(ii)
after that paragraph insert “; and
 
 
“(b)
if the patient appears to have a nominated
 
 
person, the nominated person.”;
 
 
(b)
after subsection (6) insert—
 
 
“(6A)
Before furnishing a report under subsection (6), the appropriate
40
 
practitioner must, if the patient appears to have a nominated
 
 
person, consult that person.”
 

Page 35

 
(4)
In section 66 (applications to tribunals), in subsection (1), after sub-paragraph
 
 
(i) insert—
 
 
“(ia)
in the cases mentioned in paragraphs (b) and (c) where
 
 
the application was made despite an objection under
 
 
section 11 (4B) , by the patient’s nominated person;”.
5
25
Discharge of patients: role of nominated person
 
 
In section 25 of the Mental Health Act 1983 (restrictions on discharge by
 
 
nearest relative)—
 
 
(a)
in the heading, for “nearest relative” substitute “nominated person”;
 
 
(b)
in subsection (1)—
10
 
(i)
in the words before paragraph (a), for “nearest relative”
 
 
substitute “nominated person”;
 
 
(ii)
in paragraphs (a) and (b), for “relative” substitute “nominated
 
 
person”;
 
 
(iii)
in paragraph (b) for “six months” substitute “three months”;
15
 
(c)
in subsection (2), for “nearest relative” substitute “nominated person”;
 
26
Community treatment orders: role of nominated person
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
After section 17A insert—
 
“17AA
Community treatment orders: role of nominated person
20
 
(1)
Before the responsible clinician makes a community treatment order
 
 
in respect of a patient who appears to have a nominated person, the
 
 
responsible clinician must consult that person.
 
 
(2)
But the consultation requirement imposed by subsection (1) does not
 
 
apply if it appears to the responsible clinician that consultation—
25
 
(a)
is not reasonably practicable, or
 
 
(b)
would involve unreasonable delay.
 
 
(3)
A patient’s nominated person may object to the making of a
 
 
community treatment order by notifying the responsible clinician.
 
 
(4)
Where the nominated person objects under subsection (3) , the
30
 
community treatment order may not be made unless the responsible
 
 
clinician certifies in writing that—
 
 
(a)
in the opinion of the responsible clinician, the patient should
 
 
be discharged from hospital, and
 
 
(b)
the patient, if so discharged without a community treatment
35
 
order being in force, would be likely to act in a manner that
 
 
is dangerous to other persons or to the patient.”
 
 
(3)
In the heading to section 17B, after “Conditions” insert “to be included in
 
 
community treatment orders”.
 

Page 36

 
(4)
In section 20A (community treatment period and extensions), after subsection
 
 
(8A) (as inserted by section 21 of this Act) insert—
 
 
“(8B)
Before making a statement under subsection (8)(b) in respect of a
 
 
patient who appears to have a nominated person, the approved mental
 
 
health professional must consult the nominated person, unless
5
 
consultation—
 
 
(a)
is not reasonably practicable, or
 
 
(b)
would involve unreasonable delay.”
 
 
(5)
In section 66 (applications to tribunals), in subsection (1), after sub-paragraph
 
 
(ia) (inserted by section 26 of this Act) insert—
10
 
“(ib)
in the case mentioned in paragraph (ca) where the
 
 
application was made despite an objection under section
 
 
17AA (3) , by the patient’s nominated person;”.
 
 
(6)
In Part 1 of Schedule 1 (application of certain provisions to patients subject
 
 
to hospital and guardianship orders: patients not subject to special restrictions),
15
 
in paragraph 1, before “17B,” (as inserted by Schedule 1 to this Act) insert
 
 
“17AA,”.
 
27
Transfer of patients: role of nominated person
 
 
In section 19 of the Mental Health Act 1983 (transfer of patients), after
 
 
subsection (3) insert—
20
 
“(3A)
Before deciding to transfer a patient between hospitals in pursuance
 
 
of regulations under subsection (1), or in pursuance of subsection (3),
 
 
the person responsible for taking that decision must consult the
 
 
patient’s nominated person (if any), unless consultation—
 
 
(a)
is not reasonably practicable, or
25
 
(b)
would involve unreasonable delay.”
 

Detention periods

 
28
Detention periods
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 19 (regulations as to transfers of patients), after subsection (2)
30
 
insert—
 
 
“(2A)
But, in the case of a patient falling within subsection (2)(d), section 20
 
 
has effect as if the patient had been admitted to hospital in pursuance
 
 
of an application for admission for treatment on the day on which the
 
 
patient is transferred.”
35
 
(3)
In section 20 (duration of authority)—
 
 
(a)
for subsections (1) and (2) substitute—
 
 
“(1)
Subject to the following provisions of this Part—
 

Page 37

 
(a)
a patient admitted to hospital in pursuance of an
 
 
application for admission for treatment may be detained
 
 
in a hospital for a period not exceeding three months
 
 
beginning with the day on which the patient was so
 
 
admitted, but may not be so detained for any longer
5
 
period unless the authority for the patient’s detention
 
 
is renewed under this section;
 
 
(b)
a patient placed under guardianship in pursuance of a
 
 
guardianship application may be kept under
 
 
guardianship for a period not exceeding six months
10
 
beginning with the day on which the guardianship
 
 
application was accepted, but may not be so kept for
 
 
any longer period unless the authority for the patient’s
 
 
guardianship is renewed under this section.
 
 
(2)
Authority for the detention of a patient may, unless the patient
15
 
has previously been discharged under section 23, be renewed—
 
 
(a)
from the expiration of the period referred to in
 
 
subsection (1)(a), for a further period of three months;
 
 
(b)
from the expiration of any period of renewal under
 
 
paragraph (a), for a further period of six months;
20
 
(c)
from the expiration of any period of renewal under
 
 
paragraph (b), for a further period of one year, and so
 
 
on for periods of one year at a time.
 
 
(2A)
Authority for the guardianship of a patient may, unless the
 
 
patient has previously been discharged under section 23, be
25
 
renewed—
 
 
(a)
from the expiration of the period referred to in
 
 
subsection (1)(b), for a further period of six months;
 
 
(b)
from the expiration of any period of renewal under
 
 
paragraph (a), for a further period of one year, and so
30
 
on for periods of one year at a time.”;
 
 
(b)
in subsection (8), after “subsection (2)” insert “or (2A) ”.
 
 
(4)
In section 21B (patients who are taken into custody or return after more than
 
 
28 days)—
 
 
(a)
in subsection (5), after “20(2)” insert “or (2A) ”;
35
 
(b)
in subsection (6)(b), after “20(2)” insert “or (2A) ”.
 
 
(5)
In Part 1 of Schedule 1 (application of certain provisions to patients subject
 
 
to hospital and guardianship orders)—
 
 
(a)
in paragraph 2, at the end insert “(subject to any qualifications
 
 
expressed in those paragraphs)”;
40
 
(b)
in paragraph 2B, for paragraph (c) substitute—
 
 
“(c)
subsection (5) is to be omitted.”;
 
 
(c)
in paragraph 5—
 
 
(i)
for “section 19(2)” substitute “section 19—
 
 
“(a)
in subsection (2)”;
45

Page 38

 
(ii)
at the end insert—
 
 
“(b)
subsection (2A) is to be omitted.”;
 
 
(d)
after paragraph 5A insert—
 
 
“5B
(1)
The modifications of section 20 made by this paragraph
 
 
apply in relation to a patient transferred from guardianship
5
 
to a hospital in pursuance of regulations made under section
 
 
19.
 
 
(2)
In section 20(1)(a)—
 
 
(a)
for “in pursuance of an application for admission for
 
 
treatment” there is to be substituted “as a result of
10
 
being transferred in pursuance of regulations under
 
 
section 19 ”;
 
 
(b)
for “admitted”, in the second place it occurs, there is
 
 
to be substituted “transferred”.
 
 
5C
(1)
The modifications of section 20 made by this paragraph
15
 
apply in relation to a patient in respect of whom a
 
 
community treatment order was revoked under section 17F
 
 
within the period of six months beginning with the date of
 
 
the relevant order or direction under Part 3.
 
 
(2)
In section 20(1)(a)—
20
 
(a)
for “application for admission for treatment” there is
 
 
to be substituted “order or direction under Part 3 of
 
 
this Act”;
 
 
(b)
for “three months” there is to be substituted “six
 
 
months”;
25
 
(c)
for “day on which the patient was so admitted” there
 
 
is to be substituted “day on which the community
 
 
treatment order in respect of the patient was
 
 
revoked”.
 
 
(3)
In section 20(2)—
30
 
(a)
in paragraph (a), for “three months” there is to be
 
 
substituted “six months”;
 
 
(b)
in paragraph (b), for “six months” there is to be
 
 
substituted “one year”.
 
 
5D
(1)
The modifications of section 20 made by this paragraph
35
 
apply in relation to a patient in respect of whom a
 
 
community treatment order was revoked under section 17F
 
 
after the end of the period of six months beginning with the
 
 
date of the relevant order or direction under Part 3.
 
 
(2)
In section 20(1)(a)—
40
 
(a)
for “application for admission for treatment” there is
 
 
to be substituted “order or direction under Part 3 of
 
 
this Act”;
 
 
(b)
for “day on which the patient was so admitted” there
 
 
is to be substituted “day on which the community
45

Page 39

 
treatment order in respect of the patient was
 
 
revoked”.”;
 
 
(e)
for paragraph 6 substitute—
 
 
“6
(1)
The modifications of section 20 made by this paragraph
 
 
apply in relation to a patient where none of paragraphs 5B
5
 
to 5D applies.
 
 
(2)
In section 20(1)—
 
 
(a)
in paragraph (a)—
 
 
(i)
for “application for admission for treatment”
 
 
there is to be substituted “order or direction
10
 
under Part 3 of this Act”;
 
 
(ii)
for “three months” there is to be substituted
 
 
“six months”;
 
 
(iii)
for “day on which the patient was so
 
 
admitted” there is to be substituted “date of
15
 
the relevant order or direction under Part 3
 
 
of this Act”;
 
 
(b)
in paragraph (b)—
 
 
(i)
for “a guardianship application” there is to
 
 
be substituted “an order under Part 3 of this
20
 
Act”;
 
 
(ii)
for “day on which the guardianship
 
 
application was accepted” there is to be
 
 
substituted “date of the relevant order under
 
 
Part 3 of this Act”.
25
 
(3)
In section 20(2)—
 
 
(a)
in paragraph (a), for “three months” there is to be
 
 
substituted “six months”;
 
 
(b)
in paragraph (b), for “six months” there is to be
 
 
substituted “one year”.”
30
 
(6)
In Part 2 of Schedule 1 (application of certain provisions to patients subject
 
 
to special restrictions), in paragraph 5, after paragraph (b) insert—
 
 
“(ba)
subsection (2A) is to be omitted;”.
 
 
(7)
In Schedule 5 (transitional and saving provisions), in paragraph 9 omit
 
 
sub-paragraph (2).
35

Periods for applications and references to tribunal

 
29
Periods for tribunal applications
 
 
(1)
In section 66 of the Mental Health Act 1983 (applications to tribunals), in
 
 
subsection (2)—
 
 
(a)
in paragraph (a), for “14 days” substitute “21 days”;
40
 
(b)
in paragraph (b), for “six months” substitute “three months”.
 

Page 40

 
(2)
In section 75 of the Mental Health Act 1983 (applications and references
 
 
concerning conditionally discharged restricted patients)—
 
 
(a)
in subsection (1), after “above” insert “(“conditionally discharged”)”;
 
 
(b)
in subsection (2)—
 
 
(i)
in the words before paragraph (a), for “as aforesaid but”
5
 
substitute “, is not subject to conditions amounting to a
 
 
deprivation of liberty and”;
 
 
(ii)
in paragraph (a), for the words from “beginning” to
 
 
“discharged”, substitute “beginning—
 
 
“(i)
in the case of a patient who has
10
 
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
15
 
(ii)
in any other case, with the date on which
 
 
the patient was conditionally
 
 
discharged”;
 
 
(c)
after subsection (2) insert—
 
 
“(2A)
Where a restricted patient has been conditionally discharged,
20
 
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
25
 
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.”
30
30
References to tribunal
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 17G (effect of revoking community treatment order), in subsection
 
 
(5), after “section 20” insert “and section 68”.
 
 
(3)
In section 19(2A) (as inserted by section 28 of this Act) for “has” substitute
35
 
“and section 68 have”.
 
 
(4)
In section 68 (duty of managers of hospitals to refer cases to tribunal)—
 
 
(a)
in subsection (1) omit paragraphs (d) and (e);
 
 
(b)
in subsection (2), for “the period of six months beginning with the
 
 
applicable day” substitute “a relevant period”;
40
 
(c)
in subsection (3)—
 
 
(i)
in the words before paragraph (a), for “that” substitute “the
 
 
relevant”;
 

Page 41

 
(ii)
in paragraph (a), after “(e),” insert “(f), (fza), (fa), (faa),”;
 
 
(iii)
in paragraph (c), for “(7)” substitute “(6)”;
 
 
(d)
in subsection (4), for “period mentioned in subsection (2) above”
 
 
substitute “relevant period”;
 
 
(e)
after subsection (4) insert—
5
 
“(4A)
In this section “relevant period” means—
 
 
(a)
in the case of a patient who is admitted to a hospital
 
 
in pursuance of an application for admission for
 
 
assessment, the period of three months beginning with
 
 
the applicable day;
10
 
(b)
in the case of a patient who is admitted to hospital in
 
 
pursuance of an application for admission for
 
 
treatment—
 
 
(i)
the period of three months beginning with the
 
 
applicable day;
15
 
(ii)
the period between the expiry of three months
 
 
and the expiry of 12 months beginning with the
 
 
applicable day;
 
 
(iii)
each subsequent period of 12 months;
 
 
(c)
in the case of a community patient—
20
 
(i)
the period of six months beginning with the
 
 
applicable day;
 
 
(ii)
the period between the expiry of six months and
 
 
the expiry of 12 months beginning with the
 
 
applicable day;
25
 
(iii)
each subsequent period of 12 months.”;
 
 
(f)
in subsection (5)—
 
 
(i)
in the words before paragraph (a), for “(2) above” substitute
 
 
“ (4A) ”;
 
 
(ii)
in paragraph (c), for the words from “or a patient” to the end
30
 
substitute “, the day on which the community treatment order
 
 
was made”;
 
 
(iii)
omit paragraph (d);
 
 
(g)
for subsection (6) substitute—
 
 
“(6)
The managers of the hospital must also refer the patient’s case
35
 
to the appropriate tribunal if—
 
 
(a)
the patient’s case has not been considered by such a
 
 
tribunal within the last 12 months, whether on the
 
 
patient’s own application or otherwise, and
 
 
(b)
there is no pending application or reference to the
40
 
appropriate tribunal in relation to the patient’s case.”;
 
 
(h)
omit subsection (7).
 
 
(5)
Omit section 68A.
 
 
(6)
In section 143 (general provisions as to regulations, orders and rules)—
 

Page 42

 
(a)
in subsection (2)(b), as inserted by section 50 of this Act, omit “or
 
 
68A(7)”;
 
 
(b)
in subsection (3) omit “, 68A(1)”;
 
 
(c)
in subsection (3C) omit “, or an order under section 68A(7) above,”;
 
 
(d)
omit subsection (3D).
5
 
(7)
In Part 1 of Schedule 1 (application of certain provisions to patients subject
 
 
to hospital and guardianship orders), in paragraph 10—
 
 
(a)
the existing text becomes sub-paragraph (1);
 
 
(b)
in sub-paragraph (1), for paragraph (b) substitute—
 
 
“(b)
subsections (2) to (5) are to apply if—
10
 
(i)
the patient falls within paragraph (b) of
 
 
subsection (1) as a result of being—
 
 
(A)
a patient who was transferred from
 
 
guardianship to hospital in pursuance
 
 
of regulations made under section 19,
15
 
or
 
 
(B)
a patient in respect of whom a
 
 
community treatment order was
 
 
revoked, where the revocation took
 
 
place after the end of the period of six
20
 
months beginning with the date of the
 
 
relevant order or direction under Part
 
 
3 of this Act, or
 
 
(ii)
the patient falls within paragraph (c) of
 
 
subsection (1),
25
 
but otherwise are not to apply.”;
 
 
(c)
after sub-paragraph (1) insert—
 
 
“(2)
In the application of subsections (2) to (5) of section 68 by
 
 
virtue of sub-paragraph (1) (b) , those subsections apply as if
 
 
the patient had been admitted to hospital in pursuance of
30
 
an application for admission for treatment on the day on
 
 
which the patient was transferred or the community
 
 
treatment order was revoked.”
 
31
References: restricted patients subject to deprivation of liberty conditions
 
 
(1)
The Mental Health Act 1983 is amended as follows.
35
 
(2)
In section 71 (references by Secretary of State concerning restricted patients)—
 
 
(a)
in subsection (3A), for the words from “include” to the end substitute
 
 
“make—
 
 
“(a)
provision subject to specified exceptions,
 
 
(b)
different provision for different cases or areas, and
40
 
(c)
transitional, consequential, incidental or supplemental
 
 
provision.”;
 

Page 43

 
(b)
after subsection (4) insert—
 
 
“(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—
5
 
(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
10
 
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.
15
 
(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
20
 
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.”
25
 
(3)
In section 75 (applications and references concerning conditionally discharged
 
 
restricted patients)—
 
 
(a)
after subsection (2A) (as inserted by section 29 (2) (c) of this Act) insert—
 
 
“(2B)
Where a restricted patient has been conditionally discharged,
 
 
is subject to conditions amounting to a deprivation of liberty
30
 
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
35
 
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.
 
 
(2C)
The Secretary of State is not required to make a reference under
40
 
subsection (2B) if the patient’s case was considered by the
 
 
appropriate tribunal during the period in question.
 
 
(2D)
The Secretary of State must refer to the appropriate tribunal
 
 
the case of any restricted patient who has been conditionally
 

Page 44

 
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
5
 
appropriate tribunal in relation to the patient’s case.
 
 
(2E)
The Secretary of State may by order vary the length of a period
 
 
mentioned in subsection (2B) or (2D) .
 
 
(2F)
An order under subsection (2E) may make—
 
 
(a)
provision subject to specified exceptions;
10
 
(b)
different provision for different cases or areas;
 
 
(c)
transitional, consequential, incidental or supplemental
 
 
provision.
 
 
(2G)
Any reference under subsection (2B) or (2D) must be made to
 
 
the tribunal for the area in which the patient resides.
15
 
(2H)
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.”;
 
 
(b)
in subsection (3)—
20
 
(i)
after “subsection (2) above” insert “, or any reference under
 
 
subsection (2B) or (2D) ”;
 
 
(ii)
after “such application” insert “or reference”;
 
 
(c)
after subsection (3) insert—
 
 
“(4)
Conditions amounting to a deprivation of liberty may be
25
 
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
30
 
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.”
 
 
(4)
In section 143 (general provisions as to regulations, orders and rules), in
35
 
subsection (3), for “or 71(3)” substitute “, 71(3) or 75 (2D) ”.
 
 
(5)
The amendments made by this section apply in relation to any person who
 
 
is a restricted patient within the meaning given by subsection (1) of section
 
 
79 of the Mental Health Act 1983, or is treated as a restricted patient as a
 
 
result of that subsection, whether the person became such a patient (or treated
40
 
as such a patient) before or after the coming into force of this section.
 

Page 45

32
References: restricted patients not subject to deprivation of liberty conditions
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 71 (references by Secretary of State concerning restricted patients),
 
 
for subsection (2) substitute—
 
 
“(2)
The Secretary of State must refer to the appropriate tribunal the case
5
 
of any restricted patient detained in a hospital if—
 
 
(a)
the patient’s case has not been considered by the appropriate
 
 
tribunal within the last 12 months, whether on the patient’s
 
 
own application or otherwise, and
 
 
(b)
there is no pending application or reference to the appropriate
10
 
tribunal in relation to the patient’s case.”
 
 
(3)
In section 75 (applications and references concerning conditionally discharged
 
 
restricted patients)—
 
 
(a)
before subsection (2C) (as inserted by section 31 (3) (a) of this Act)
 
 
insert—
15
 
“(2B)
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, the Secretary of
 
 
State must refer the patient’s case to the appropriate tribunal
 
 
on the expiry of—
20
 
(a)
the period 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
25
 
conditions, and
 
 
(ii)
in any other case, with the date on which the
 
 
patient was conditionally discharged, and
 
 
(b)
each subsequent period of four years.”;
 
 
(b)
in subsection (2D), after “subsection” insert “ (2B) or”;
30
 
(c)
in subsection (2E) omit “, is subject to conditions amounting to a
 
 
deprivation of liberty”;
 
 
(d)
in subsection (2F), after “subsection” insert “ (2B) ,”;
 
 
(e)
in subsection (2H), after “subsection” insert “ (2B) ,”;
 
 
(f)
in subsection (3), after “subsection”, in the second place it occurs, insert
35
 
“ (2B) ,”.
 
 
(4)
The amendments made by this section apply in relation to any person who
 
 
is a restricted patient within the meaning given by subsection (1) of section
 
 
79 of the Mental Health Act 1983, or is treated as a restricted patient as a
 
 
result of that subsection, whether the person became such a patient (or treated
40
 
as such a patient) before or after the coming into force of this section.
 

Page 46

Discharge: process

 
33
Discharge: process
 
 
In section 23 of the Mental Health Act 1983 (discharge of patients), after
 
 
subsection (2) insert—
 
 
“(2A)
Before making an order for discharge by virtue of subsection (2)(a),
5
 
the responsible clinician must consult a person—
 
 
(a)
who has been professionally concerned with the patient’s
 
 
medical treatment, and
 
 
(b)
who belongs to a profession other than that to which the
 
 
responsible clinician belongs.
10
 
(2B)
Before making an order for discharge by virtue of subsection (2)(b)—
 
 
(a)
the responsible clinician must consult a person—
 
 
(i)
who has been professionally concerned with the
 
 
patient’s care or treatment, and
 
 
(ii)
who belongs to a profession other than that to which
15
 
the responsible clinician belongs;
 
 
(b)
the responsible local social services authority must ensure that
 
 
whoever is taking the decision for the authority consults a
 
 
person who has been professionally concerned with the patient's
 
 
care or treatment (whether or not a member of staff of the
20
 
authority);
 
 
(c)
the patient’s nominated person must consult the responsible
 
 
local social services authority.
 
 
(2C)
Before making an order for discharge by virtue of subsection (2)(c)—
 
 
(a)
the responsible clinician must, if they are not the community
25
 
clinician, consult the community clinician;
 
 
(b)
the hospital managers must consult the community clinician.”
 

Patients concerned in criminal proceedings or under sentence

 
34
Conditional discharge subject to deprivation of liberty conditions
 
 
(1)
The Mental Health Act 1983 is amended as follows.
30
 
(2)
In section 42 (powers of Secretary of State in respect of patients subject to
 
 
restriction orders), after subsection (2) insert—
 
 
“(2A)
Conditions amounting to a deprivation of a patient’s liberty may be
 
 
imposed under subsection (2) if the Secretary of State is satisfied that
 
 
those conditions are necessary for the protection of the public from
35
 
serious harm.”
 
 
(3)
In section 73 (power of tribunal to discharge patients subject to restriction
 
 
orders)—
 
 
(a)
in subsection (2)—
 
 
(i)
omit the “but” at the end of paragraph (a);
40

Page 47

 
(ii)
at the end of paragraph (b), after “apply” insert “; 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
5
 
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
10
 
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
15
 
conditions would be no less beneficial to
 
 
their mental health than for them to
 
 
remain in hospital”;
 
 
(b)
after subsection (5) insert—
 
 
“(5A)
Conditions amounting to a deprivation of a patient’s liberty
20
 
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
25
 
(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.”
 
 
(4)
In section 145(1) (interpretation), at the appropriate place insert—
 
 
““deprivation of liberty” and related expressions are to be construed in
30
 
accordance with section 64(5) and (6) of the Mental Capacity Act 2005;”.
 
 
(5)
The amendments made by this section apply in relation to any person who
 
 
is a restricted patient within the meaning given by subsection (1) of section
 
 
79 of the Mental Health Act 1983, or is treated as a restricted patient as a
 
 
result of that subsection, whether the person became such a patient (or treated
35
 
as such a patient) before or after the coming into force of this section.
 
35
Transfers of prisoners and others to hospital: conditions
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 47 (removal to hospital of persons serving sentences of imprisonment
 
 
etc) for subsection (1)(c) substitute—
40
 
“(c)
that appropriate medical treatment can be given for the relevant
 
 
disorder from which the person is suffering;”.
 
 
(3)
In section 48 (removal to hospital of other prisoners)—
 

Page 48

 
(a)
for subsection (1)(c) substitute—
 
 
“(c)
appropriate medical treatment can be given for the
 
 
relevant disorder from which the person is suffering;”;
 
 
(b)
in subsection (2), for paragraph (d) substitute—
 
 
“(d)
persons detained under—
5
 
(i)
the Immigration Act 1971,
 
 
(ii)
section 62 of the Nationality, Immigration and
 
 
Asylum Act 2002 (detention by Secretary of
 
 
State),
 
 
(iii)
section 36 of the UK Borders Act 2007 (detention
10
 
of offenders for deportation), or
 
 
(iv)
regulation 32 of the Immigration (European
 
 
Economic Area) Regulations 2016 (S.I. 2016/1052)
 
 
(which are saved by the Citizens’ Rights
 
 
(Restrictions of Rights of Entry and Residence)
15
 
(EU Exit) Regulations 2020 (S.I. 2020/1210)).”
 
36
Transfers of prisoners and others to hospital: time limits
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
After section 47 insert—
 
“47A
Hospital treatment for prisoners: 28 day transfer period
20
 
(1)
As soon as practicable after a relevant referring body makes an initial
 
 
request for a medical report in relation to a person serving a sentence
 
 
of imprisonment (“P”), the body must give a referral notice to the
 
 
persons specified in subsection (3) .
 
 
(2)
For the purposes of this section—
25
 
(a)
a request is an “initial request” for a medical report if it is the
 
 
first request for a report by a registered medical practitioner
 
 
on whether the conditions in section 47(1) are satisfied in
 
 
relation to P at a particular time;
 
 
(b)
“referral notice” means a notice—
30
 
(i)
stating that an initial request has been made in relation
 
 
to P, and
 
 
(ii)
specifying the date on which the initial request was
 
 
made;
 
 
(c)
“relevant referring body” means—
35
 
(i)
in relation to a person serving a sentence of
 
 
imprisonment in England, a person who is a “service
 
 
provider” within the meaning given by section 12ZA(9)
 
 
of the National Health Service Act 2006 or provides
 
 
“NHS medical services” within the meaning given by
40
 
section 14Z31(5) of that Act;
 
 
(ii)
in relation to a person serving a sentence of
 
 
imprisonment in Wales, a Local Health Board.
 

Page 49

 
(3)
The persons to whom the referral notice must be given (“the notified
 
 
authorities”) are—
 
 
(a)
the Secretary of State;
 
 
(b)
the relevant detention authority (see section 48B );
 
 
(c)
as many of the following (other than the relevant referring
5
 
body) as the relevant referring body considers likely to have
 
 
functions in relation to P in the event that the Secretary of State
 
 
gives a direction under section 47—
 
 
(i)
NHS England;
 
 
(ii)
integrated care boards;
10
 
(iii)
National Health Service trusts established under section
 
 
18 of the National Health Service (Wales) Act 2006;
 
 
(iv)
Local Health Boards;
 
 
(v)
service providers within the meaning given by section
 
 
12ZA(9) of the National Health Service Act 2006.
15
 
(4)
When exercising functions in relation to P, the relevant referring body
 
 
and the notified authorities must seek to ensure that, absent exceptional
 
 
circumstances, the following all happen within the period of 28 days
 
 
beginning with the date of the initial request—
 
 
(a)
a decision is taken as to whether to make a direction under
20
 
section 47 in respect of P;
 
 
(b)
if a decision is taken to make such a direction, the direction is
 
 
made, and
 
 
(c)
where the direction is made, P is removed to and detained in
 
 
a hospital in pursuance of the direction.
25
 
(5)
For the purposes of subsection (4) the following are not (together or
 
 
separately) “exceptional circumstances”—
 
 
(a)
a shortage of hospital accommodation;
 
 
(b)
a shortage of hospital staff;
 
 
unless occurring as a result of other exceptional circumstances.”
30
 
(3)
After section 48 insert—
 
“48A
Hospital treatment for other prisoners: 28 day transfer period
 
 
(1)
As soon as practicable after a relevant referring body makes an initial
 
 
request for a medical report in relation to a person (“P”) to whom
 
 
section 48 applies, the body must give a referral notice to the persons
35
 
specified in subsection (3) .
 
 
(2)
For the purposes of this section—
 
 
(a)
a request is an “initial request” for a medical report if it is the
 
 
first request for a report by a registered medical practitioner
 
 
on whether the conditions in section 48(1) are satisfied in
40
 
relation to P at a particular time;
 
 
(b)
“referral notice” means a notice—
 
 
(i)
stating that an initial request has been made in relation
 
 
to P, and
 

Page 50

 
(ii)
specifying the date on which the initial request was
 
 
made;
 
 
(c)
“relevant referring body” means—
 
 
(i)
in relation to a person to whom section 48 applies and
 
 
who is detained or remanded at a place in England, a
5
 
person who is a “service provider” within the meaning
 
 
given by section 12ZA(9) of the National Health Service
 
 
Act 2006 or provides “NHS medical services” within
 
 
the meaning given by section 14Z31(5) of that Act;
 
 
(ii)
in relation to a person to whom section 48 applies and
10
 
who is detained or remanded at a place in Wales, a
 
 
Local Health Board.
 
 
(3)
The persons to whom the referral notice must be given (“the notified
 
 
authorities”) are—
 
 
(a)
the Secretary of State;
15
 
(b)
the relevant detention authority (see section 48B );
 
 
(c)
as many of the following (other than the relevant referring
 
 
body) as the relevant referring body considers likely to have
 
 
functions in relation to P in the event that the Secretary of State
 
 
gives a direction under section 48—
20
 
(i)
NHS England;
 
 
(ii)
integrated care boards;
 
 
(iii)
National Health Service trusts established under section
 
 
18 of the National Health Service (Wales) Act 2006;
 
 
(iv)
Local Health Boards;
25
 
(v)
service providers within the meaning given by section
 
 
12ZA(9) of the National Health Service Act 2006.
 
 
(4)
When exercising functions in relation to P, the relevant referring body
 
 
and the notified authorities must seek to ensure that, absent exceptional
 
 
circumstances, the following all happen within the period of 28 days
30
 
beginning with the date of the initial request—
 
 
(a)
a decision is taken as to whether to make a direction under
 
 
section 48 in respect of P;
 
 
(b)
if a decision is taken to make such a direction, the direction is
 
 
made, and
35
 
(c)
where the direction is made, P is removed to and detained in
 
 
a hospital in pursuance of the direction.
 
 
(5)
For the purposes of subsection (4) the following are not (together or
 
 
separately) “exceptional circumstances”—
 
 
(a)
a shortage of hospital accommodation;
40
 
(b)
a shortage of hospital staff;
 
 
unless occurring as a result of other exceptional circumstances.”
 

Page 51

 
(4)
After section 48A (inserted by subsection (3)) insert—
 
“48B
Sections 47A and 48A: supplementary
 
 
(1)
For the purposes of sections 47A and 48A , “the relevant detention
 
 
authority”, in relation to a referral notice (within the meaning of the
 
 
section in question), has the meaning given by the table.
5
 
Where, on the day the referral
 
 
The relevant detention authority is
 
 
notice is sent, P is detained or
 
 
remanded in
 
 
a prison
 
 
the governor or director of the
 
 
prison
10
 
a young offender institution
 
 
the governor or director of the
 
 
institution
 
 
a secure training centre
 
 
the governor or director of the
 
 
centre
 
 
a secure children’s home
15
 
the registered manager of the home
15
 
a removal centre
 
 
the manager of the centre
 
 
a short-term holding facility
 
 
the manager of the facility
 
 
pre-departure accommodation
 
 
the manager of the accommodation
 
 
(2)
In this section—
 
 
“pre-departure accommodation” has the meaning given by section
20
 
147 of the Immigration and Asylum Act 1999;
 
 
“registered manager” , in relation to a secure children’s home,
 
 
means a person who is registered under Part 2 of the Care
 
 
Standards Act 2000 as the manager of the home;
 
 
“removal centre” has the meaning given by section 147 of the
25
 
Immigration and Asylum Act 1999;
 
 
“secure children’s home” has the meaning given by section 102(11)
 
 
of the Legal Aid, Sentencing and Punishment of Offenders Act
 
 
2012;
 
 
“secure training centre” has the meaning given by section 43(1)(d)
30
 
of the Prison Act 1952;
 
 
“short-term holding facility” has the meaning given by section
 
 
147 of the Immigration and Asylum Act 1999;
 
 
“young offender institution” has the meaning given by section
 
 
43(1)(aa) of the Prison Act 1952.
35
 
(3)
The Secretary of State may by regulations—
 
 
(a)
amend this section or section 47A or 48A so as to change the
 
 
persons—
 
 
(i)
who are subject to the duty to give a referral notice
 
 
under section 47A (1) or 48A (1) , or
40

Page 52

 
(ii)
to whom a referral notice must be given under
 
 
subsection 47A (3) or 48A (3) ;
 
 
(b)
amend the period in 47A (4) or 48A (4) .”
 
 
(5)
In relation to the procedure for regulation-making powers inserted by this
 
 
section, see section 50 .
5
37
Transfer directions for persons detained in youth detention accommodation
 
 
(1)
In section 48 of the Mental Health Act 1983 (removal to hospital of other
 
 
prisoners), in subsection (2)(a), for “remand centre” substitute “remanded to
 
 
youth detention accommodation under section 91 of the Legal Aid, Sentencing
 
 
and Punishment of Offenders Act 2012”.
10
 
(2)
In Schedule 8 to the Criminal Justice and Court Services Act 2000 (repeals),
 
 
in the table, omit the entry relating to section 48(2)(a) of the Mental Health
 
 
Act 1983.
 
38
Minor amendment
 
 
In Part 1 of Schedule 1 to the Mental Health Act 1983 (application of certain
15
 
provisions to patients subject to hospital and guardianship orders who are
 
 
not subject to special restrictions), in paragraph 9(b), for the words from “and
 
 
(g)” to ““(g)”,” substitute “, (d) and (g)”.
 

Help and information for patients

 
39
Independent mental health advocates
20
 
Schedule 3 contains amendments relating to independent mental health
 
 
advocates, including amendments which—
 
 
(a)
provide for informal patients to qualify for help from independent
 
 
mental health advocates;
 
 
(b)
impose duties on hospital managers and others to notify providers of
25
 
advocacy services about qualifying patients;
 
 
(c)
impose duties on providers of advocacy services to arrange for certain
 
 
patients to be interviewed to find out whether they want to use those
 
 
services.
 
40
Information about complaints for detained patients
30
 
In section 132 of the Mental Health Act 1983 (duty of managers of hospitals
 
 
to give information to detained patients)—
 
 
(a)
in subsection (2) omit the words from “and those steps” to the end;
 
 
(b)
after subsection (2) insert—
 
 
“(2A)
The managers of a hospital or registered establishment in which
35
 
a patient is detained under this Act must also take such steps
 
 
as are practicable to ensure that the patient understands how
 
 
to exercise any right the patient has to make complaints about—
 

Page 53

 
(a)
the carrying out of functions under this Act;
 
 
(b)
any medical treatment for mental disorder received
 
 
during the patient’s detention;
 
 
(c)
the outcome of any complaint referred to in paragraph
 
 
(b) .
5
 
(2B)
Where a patient is detained under any provision of this Act,
 
 
the steps under subsections (2) and (2A) must be taken —
 
 
(a)
as soon as practicable after the commencement of the
 
 
patient’s detention under the provision in question, and
 
 
(b)
again—
10
 
(i)
if the patient is a restricted patient within the
 
 
meaning given by subsection (1) of section 79,
 
 
or is treated as mentioned in paragraph (a) or
 
 
(c) of that subsection, as soon as practicable after
 
 
the end of each successive period of twelve
15
 
months beginning with the day on which the
 
 
patient became a restricted patient or was first
 
 
so treated (as the case may be);
 
 
(ii)
otherwise, as soon as practicable after any report
 
 
is furnished under section 20 in respect of the
20
 
patient.”;
 
 
(c)
in subsection (3), for “and (2)” substitute “, (2) and (2A) ”;
 
 
(d)
in subsection (4), for “and (2)” substitute “, (2) and (2A) ”.
 
41
Information about complaints for community patients
 
 
In section 132A of the Mental Health Act 1983 (duty of managers of hospitals
25
 
to give information to community patients), in subsection (1)—
 
 
(a)
omit the “and” at the end of paragraph (a);
 
 
(b)
after paragraph (b) insert—
 
 
“(c)
how to exercise any right the patient has to make
 
 
complaints about—
30
 
(i)
the carrying out of functions under this Act;
 
 
(ii)
any medical treatment for mental disorder
 
 
received while the patient is a community
 
 
patient;
 
 
(iii)
the outcome of any complaint referred to in
35
 
sub-paragraph (ii) ;”;
 
 
(c)
at the end insert “and again as soon as practicable after any report is
 
 
furnished under section 20A in respect of the patient”.
 

Page 54

42
Information for conditionally discharged patients
 
 
After section 132A of the Mental Health Act 1983 insert—
 
 
“132B
Duty of managers of hospitals to give information to conditionally
 
 
discharged patients
 
 
(1)
Where a patient is discharged from a hospital or registered
5
 
establishment under section 42(2), 73 or 74 and the discharge is a
 
 
conditional discharge, the managers of the hospital or registered
 
 
establishment must take such steps as are practicable to ensure that
 
 
the patient understands—
 
 
(a)
under which provision the patient is conditionally discharged
10
 
and the effect of that provision;
 
 
(b)
the effect of the provisions of this Act applying to patients who
 
 
are conditionally discharged under that provision;
 
 
(c)
what rights of applying to a tribunal are available to the patient
 
 
while the patient is conditionally discharged;
15
 
(d)
how to exercise any right the patient has to make complaints
 
 
about—
 
 
(i)
the carrying out of functions under this Act;
 
 
(ii)
any medical treatment for mental disorder received
 
 
while the patient is conditionally discharged;
20
 
(iii)
the outcome of any complaint referred to in
 
 
sub-paragraph (ii) .
 
 
(2)
Those steps must be taken as soon as practicable.
 
 
(3)
The steps to be taken under subsection (1) must include giving the
 
 
requisite information both orally and in writing.
25
 
(4)
The managers of the hospital or registered establishment must, except
 
 
where the patient otherwise requests, take such steps as are practicable
 
 
to furnish the patient’s nominated person with a copy of any
 
 
information given to the patient in writing under subsection (1) .
 
 
(5)
Those steps must be taken when the information is given to the patient
30
 
or within a reasonable time thereafter.”
 
43
Advance choice documents
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
After section 130L insert—
 
“130M
Advance choice documents: England
35
 
(1)
NHS England and each integrated care board must make such
 
 
arrangements as it considers appropriate for—
 
 
(a)
making information about advance choice documents available
 
 
to people for whom it is responsible for the purposes of this
 
 
section, and
40

Page 55

 
(b)
helping such of those people as it considers appropriate to
 
 
create advance choice documents.
 
 
(2)
For the purposes of this section—
 
 
(a)
NHS England is “responsible” for any people for whom it is
 
 
required to arrange the provision of services or facilities by
5
 
virtue of section 3B(1)(c) of the National Health Service Act
 
 
2006 (prisoners etc);
 
 
(b)
an integrated care board is “responsible” for anyone not within
 
 
paragraph (a) who falls within the group of people for whom
 
 
the board has core responsibility (as to which, see section 14Z31
10
 
of the National Health Service Act 2006).
 
 
(3)
An “advance choice document” is a written statement made by a
 
 
qualifying person specifying their decisions, wishes or feelings about
 
 
any relevant matter that may arise in the event that—
 
 
(a)
at some future time—
15
 
(i)
consideration is given to the person’s admission to
 
 
hospital or a registered establishment as an in-patient
 
 
either for medical treatment for mental disorder or for
 
 
assessment in relation to mental disorder, or
 
 
(ii)
the person is detained under this Act, or given medical
20
 
treatment for mental disorder as an in-patient in
 
 
hospital, and
 
 
(b)
at that time, the person lacks capacity or competence in relation
 
 
to that matter.
 
 
(4)
For the purposes of subsection (3) —
25
 
(a)
“qualifying person” means a person who has capacity or
 
 
competence to make the statement,
 
 
(b)
“relevant matter”, in relation to a qualifying person, means a
 
 
matter relating to, or arising as a consequence of—
 
 
(i)
consideration of an application for the person’s
30
 
admission for assessment or treatment, or
 
 
(ii)
the person’s detention under this Act, or their medical
 
 
treatment for a mental disorder as an in-patient in
 
 
hospital, and
 
 
(c)
a reference to lacking capacity is to lacking capacity within the
35
 
meaning of the Mental Capacity Act 2005; and a reference to
 
 
having capacity is to be read accordingly.
 
130N
Advance choice documents: Wales
 
 
(1)
Each Local Health Board must make such arrangements in relation to
 
 
its area as it considers appropriate for—
40
 
(a)
making available information about advance choice documents,
 
 
and
 
 
(b)
helping such of those people as it considers appropriate to
 
 
create advance choice documents.
 

Page 56

 
(2)
In this section “advance choice document” has the meaning given by
 
 
section 130M (3) .”
 
 
(3)
In section 118 (code of practice), in subsection (1), after paragraph (e) (as
 
 
inserted by section 18 of this Act) insert—
 
 
“(f)
for the guidance of NHS England, integrated care boards and
5
 
Local Health Boards in relation to their functions under section
 
 
130M or 130N .””
 

After-care

 
44
Tribunal power to recommend after-care
 
 
(1)
Section 72 of the Mental Health Act 1983 (powers of tribunals) is amended
10
 
as follows.
 
 
(2)
In subsection (3)(a), for the words from “he” to “guardianship” substitute—
 
 
“(i)
the patient be granted leave of absence;
 
 
(ii)
the patient be transferred to another hospital or into
 
 
guardianship; or
15
 
(iii)
the responsible after-care bodies make plans for the
 
 
provision of after-care services for the patient”.
 
 
(3)
After subsection (7) insert—
 
 
“(8)
In this section—
 
 
“after-care services” means after-care services provided or
20
 
arranged under section 117;
 
 
“the responsible after-care bodies” , in relation to a patient, means
 
 
the bodies that will have the duty under section 117 to provide
 
 
after-care services for the patient.”
 
45
After-care services
25
 
(1)
Section 117 of the Mental Health Act 1983 (after-care) is amended as follows.
 
 
(2)
In subsection (2), after “authority”, in the second place it occurs, insert “jointly
 
 
give notice in writing to the person stating that they”.
 
 
(3)
After subsection (3) insert—
 
 
“(3A)
In applying subsection (3) for the purpose of determining the local
30
 
social services authority in relation to a person—
 
 
(a)
section 105(6) of the Children Act 1989—
 
 
(i)
applies for the purpose of determining the person’s
 
 
ordinary residence at any time when they were aged
 
 
under 18, and
35

Page 57

 
(ii)
in its application for that purpose, is to be read as if
 
 
there were inserted, after paragraph (c)—
 
 
“(d)
while the child is being provided with
 
 
accommodation under section 117 of the
 
 
Mental Health Act 1983; or
5
 
(e)
while the child is being provided
 
 
with accommodation under any of the
 
 
following—
 
 
the National Health Service Act
 
 
2006;
10
 
the National Health Service (Wales)
 
 
Act 2006;
 
 
the National Health Service
 
 
(Scotland) Act 1978;
 
 
the Health and Personal Social
15
 
Services (Northern Ireland) Order
 
 
1972 (S.I. 1972/1265 (N.I. 14));
 
 
the Health and Social Care
 
 
(Reform) Act (Northern Ireland)
 
 
2009; or
20
 
(f)
which is referred to in section 194(6) of
 
 
the Social Services and Well-being
 
 
(Wales) Act 2014 (anaw‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌ 4).”;
 
 
(b)
the following provisions apply for the purpose of determining
 
 
the person’s ordinary residence at any time when they were
25
 
aged 18 or over—
 
 
(i)
section 39(1) to (6) of, and paragraphs 1(1), 2(1) and (2)
 
 
and 8 of Schedule 1 to, the Care Act 2014;
 
 
(ii)
section 194(1) to (3) of the Social Services and Well-being
 
 
(Wales) Act 2014 (anaw‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌ 4).
30

Miscellaneous

 
46
Tribunal powers in guardianship cases: burden of proof
 
 
In section 72(4) of the Mental Health Act 1983 (powers of tribunals in relation
 
 
to guardianship cases)—
 
 
(a)
in the opening words, after “it is” insert “not”;
35
 
(b)
in paragraph (a) omit “not”;
 
 
(c)
in paragraph (b) omit “not”.
 
47
Removal of police stations and prisons as places of safety
 
 
(1)
The Mental Health Act 1983 is amended as follows.
 

Page 58

 
(2)
In section 55 (interpretation of Part 3), in subsection (1), for the definition of
 
 
“place of safety” substitute—
 
 
““place of safety” —
 
 
(a)
in relation to a person who is not a child or young person,
 
 
means any hospital the managers of which are willing
5
 
temporarily to receive that person;
 
 
(b)
in relation to a child or young person, has the same meaning
 
 
as in the Children and Young Persons Act 1933 except that it
 
 
does not include a police station;”.
 
 
(3)
The amendment made by subsection (2) does not apply in relation to any
10
 
directions given under sections 35(4), 36(3), 37(4), 38(4) or 45A(5) before the
 
 
coming into force of that subsection.
 
 
(4)
In section 135 (warrant to search for and remove patients)—
 
 
(a)
in subsection (6) omit “a police station,”;
 
 
(b)
in subsection (7), before paragraph (a) insert—
15
 
“(za)
a police station may not be regarded as a suitable
 
 
place;”;
 
 
(c)
omit subsection (8).
 
 
(5)
In section 136 (removal etc of mentally disordered persons without a warrant)
 
 
omit subsection (5).
20
 
(6)
Omit section 136A (use of police stations as places of safety).
 
 
(7)
In section 136B (extension of detention) omit subsection (3).
 
48
Remand for a person’s own protection etc
 
 
(1)
Schedule 1 to the Bail Act 1976 (persons entitled to bail: supplementary
 
 
provisions) is amended as follows.
25
 
(2)
In Part 1 of that Schedule (defendants accused or convicted of imprisonable
 
 
offences), for paragraph 3 substitute—
 
 
“3
(1)
The defendant need not be granted bail if—
 
 
(a)
the defendant has attained the age of 18, and
 
 
(b)
the court is satisfied, otherwise than by reason only of
30
 
concerns about the defendant’s mental health, that the
 
 
defendant should be kept in custody for their own protection.
 
 
(2)
The defendant need not be granted bail if—
 
 
(a)
the defendant is a child or young person, and
 
 
(b)
the court is satisfied that the defendant should be kept in
35
 
custody for their own welfare.”
 
 
(3)
In Part 1A of that Schedule (defendants accused or convicted of imprisonable
 
 
offences to which Part 1 does not apply), for paragraph 5 substitute—
 
 
“5
(1)
The defendant need not be granted bail if—
 
 
(a)
the defendant has attained the age of 18, and
40

Page 59

 
(b)
the court is satisfied, otherwise than by reason only of
 
 
concerns about the defendant’s mental health, that the
 
 
defendant should be kept in custody for their own protection.
 
 
(2)
The defendant need not be granted bail if—
 
 
(a)
the defendant is a child or young person, and
5
 
(b)
the court is satisfied that the defendant should be kept in
 
 
custody for their own welfare.”
 
 
(4)
In Part 2 of that Schedule (defendants accused or convicted of
 
 
non-imprisonable offences), for paragraph 3 substitute—
 
 
“3
(1)
The defendant need not be granted bail if—
10
 
(a)
the defendant has attained the age of 18, and
 
 
(b)
the court is satisfied, otherwise than by reason only of
 
 
concerns about the defendant’s mental health, that the
 
 
defendant should be kept in custody for their own protection.
 
 
(2)
The defendant need not be granted bail if—
15
 
(a)
the defendant is a child or young person, and
 
 
(b)
the court is satisfied that the defendant should be kept in
 
 
custody for their own welfare.”
 
 
(5)
The amendments made by this section apply in relation to any person who
 
 
is before a court after the coming into force of this section.
20
 
49
Removal of interim remand patients to and from Channel Islands or Isle of
 

Man

 
 
(1)
The Mental Health Act 1983 is amended as follows.
 
 
(2)
In section 83 (removal of patients to Channel Islands or Isle of Man) omit
 
 
“(otherwise than by virtue of section 35, 36 or 38 above)”.
25
 
(3)
In section 85 (patients removed from Channel Islands or Isle of Man)—
 
 
(a)
in subsection (1) omit “(other than section 35, 36 or 38 above)”;
 
 
(b)
in subsection (2), after “shall” insert “(subject to subsection (2A))”;
 
 
(c)
after subsection (2) insert—
 
 
“(2A)
In relation to a patient treated by virtue of subsection (2) as
30
 
liable to be detained under section 35, 36 or 38, this Act is to
 
 
be read with the modifications set out in Schedule A2.”
 
 
(4)
In section 91 (general provisions as to patients removed from England and
 
 
Wales), in subsection (1) omit “(other than section 35, 36 or 38 above)”.
 

Page 60

 
(5)
After Schedule A1 (inserted by Schedule 2 to this Act) insert—
 
 
“Schedule A2
Section 85 (2A)
 
 
Interim remand patients from Channel Islands or Isle of Man:
 
 
modifications of this Act
 
 
Modifications of section 35
5
 
1
(1)
In relation to a patient who is treated by virtue of section 85(2) as
 
 
admitted to hospital in pursuance of an order made under section
 
 
35(1) (remand to hospital for report on accused’s mental condition),
 
 
section 35 applies with the modifications set out in this paragraph.
 
 
(2)
Subsection (2) is to be omitted.
10
 
(3)
References to an “accused person” are to be read as references to
 
 
the patient referred to in sub-paragraph (1).
 
 
(4)
References to “the court” are to be read as references to whichever
 
 
of—
 
 
(i)
the Crown Court, and
15
 
(ii)
a magistrates’ court,
 
 
has functions most closely corresponding to those of the court under
 
 
whose order or direction the patient was liable to be detained
 
 
immediately before the patient’s removal to England and Wales.
 
 
(5)
In subsection (5) for the words from the beginning to “him” there
20
 
is to be substituted “The court may further remand an accused
 
 
person”.
 
 
(6)
After subsection (5) there is to be inserted—
 
 
“(5A)
The court may also further remand an accused person if it
 
 
has been notified by the Secretary of State that—
25
 
(a)
the person is the subject of criminal proceedings in
 
 
any of the Channel Islands or the Isle of Man, and
 
 
(b)
the Secretary of State is considering exercising the
 
 
power in section 83 in relation to the accused person.”
 
 
(7)
For subsection (7) there is to be substituted—
30
 
“(7)
A remand under this section has effect for 28 days.
 
 
(7A)
Further periods of remand by the court may not be for more
 
 
than 28 days at a time and an accused person may not be
 
 
remanded for more than 12 weeks in all.
 
 
(7B)
Where the court further remands an accused person it must
35
 
notify the Secretary of State of the period for which the
 
 
person is further remanded.
 
 
(7C)
The court may at any time recommend to the Secretary of
 
 
State that the accused person be returned to the island from
 
 
which the person was removed.”
40

Page 61

 
(8)
In subsection (8), for “his remand to be terminated under subsection
 
 
(7)” there is to be substituted “a recommendation to be made under
 
 
subsection (7C)”.
 
 
(9)
In subsection (10), the words from “that remanded him” to the end
 
 
are to be omitted.
5
 
Modifications of section 36
 
 
2
(1)
Section 36 (remand of accused person to hospital for treatment)
 
 
applies—
 
 
(a)
in relation to a patient who is treated by virtue of section
 
 
85(2) as admitted to hospital in pursuance of an order made
10
 
under section 35(1) (remand to hospital for report on
 
 
accused’s mental condition), with the modifications set out
 
 
in sub-paragraphs (2) to (8) ;
 
 
(b)
in relation to a patient who—
 
 
(i)
was treated by virtue of section 85(2) as admitted to
15
 
hospital in pursuance of an order made under section
 
 
35(1), and
 
 
(ii)
is subsequently remanded under section 36(1) as it
 
 
applies by virtue of paragraph (a) ,
 
 
with the modifications set out in sub-paragraphs (3) to (8) ;
20
 
(c)
in relation to a patient who is treated by virtue of section
 
 
85(2) as admitted to hospital in pursuance of an order made
 
 
under section 36(1), with the modifications set out in
 
 
sub-paragraphs (3) to (8) .
 
 
(2)
In subsection (1), in the words before paragaph (a), for “, instead
25
 
of remanding an accused person in custody, remand him” there is
 
 
to be substituted “remand an accused person”.
 
 
(3)
Subsection (2) is to be omitted.
 
 
(4)
References to an “accused person” are to be read as references to
 
 
the patient referred to in sub-paragraph (1) (a) , (b) or (c) .
30
 
(5)
In subsection (4), for “warranted” there is to be substituted
 
 
“warranted—
 
 
“(a)
because the court has been notified by the Secretary
 
 
of State that—
 
 
(i)
the person is the subject of criminal
35
 
proceedings in any of the Channel Islands or
 
 
the Isle of Man, and
 
 
(ii)
the Secretary of State is considering exercising
 
 
the power in section 83 in relation to the
 
 
accused person, or
40
 
(b)
for other reasons”.
 
 
(6)
For subsection (6) there is to be substituted—
 
 
“(6)
A remand under this section has effect for 28 days.
 

Page 62

 
(6A)
Further periods of remand by the court may not be for more
 
 
than 28 days at a time and an accused person may not be
 
 
remanded for more than 12 weeks in all.
 
 
(6B)
Where the court further remands an accused person it must
 
 
notify the Secretary of State of the period for which the
5
 
person is further remanded.
 
 
(6C)
The court may at any time recommend to the Secretary of
 
 
State that the accused person be returned to the island from
 
 
which the person was removed.”
 
 
(7)
In subsection (7) for “his remand to be terminated under subsection
10
 
(6)” there is to be substituted “a recommendation to be made under
 
 
subsection (6C) ”;
 
 
(8)
Subsection (8) is to be read as applying subsection (10) of section
 
 
35 as modified by paragraph 1 (9) of this Schedule.
 
 
Modifications of section 38
15
 
3
(1)
In relation to a patient who is treated by virtue of section 85(2) as
 
 
admitted to hospital in pursuance of an order made under section
 
 
38(1) (interim hospital orders), section 38 applies with the
 
 
modifications set out in this paragraph.
 
 
(2)
Subsection (2) is to be omitted.
20
 
(3)
References to “the court” are to be read as references to whichever
 
 
of—
 
 
(i)
the Crown Court, and
 
 
(ii)
a magistrates’ court,
 
 
has functions most closely corresponding to those of the court under
25
 
whose order or direction the patient was liable to be detained
 
 
immediately before the patient’s removal to England and Wales.
 
 
(4)
In subsection (5)—
 
 
(a)
in paragraph (b), for “warranted” there is to be substituted
 
 
“warranted—
30
 
“(i)
because the court has been notified by
 
 
the Secretary of State that—
 
 
(A)
the offender is the subject of
 
 
criminal proceedings in any
 
 
of the Channel Islands or the
35
 
Isle of Man, and
 
 
(B)
the Secretary of State is
 
 
considering exercising the
 
 
power in section 83 in
 
 
relation to the offender, or
40
 
(ii)
for other reasons”;
 
 
(b)
in the words after paragraph (b), the words from “and” to
 
 
the end are to be omitted.
 

Page 63

 
(5)
After subsection (5) there is to be inserted—
 
 
“(5A)
Where the court renews the interim hospital order it must
 
 
notify the Secretary of State of the period for which it is
 
 
renewed.
 
 
(5B)
The court may at any time recommend to the Secretary of
5
 
State that the offender be returned to the island from which
 
 
the offender was removed.”
 
 
(6)
In subsection (7), the words from “that made the order” to the end
 
 
are to be omitted.
 
 
Modification of section 83
10
 
4
In relation to a patient referred to in paragraph 1 (1) , 2 (1) or 3 (1) , in
 
 
section 83 (removal of patients to Channel Islands or Isle of Man),
 
 
for “in the interests of the patient” there is to be substituted
 
 
“appropriate”.
 
50
Procedure for certain regulations made by virtue of sections
15
 
In section 143 (general provisions as to regulations, orders and rules)—
 
 
(a)
for subsection (2) substitute—
 
 
“(2)
The following are subject to annulment in pursuance of a
 
 
resolution of either House of Parliament—
 
 
(a)
any Order in Council under this Act;
20
 
(b)
any order made by the Secretary of State under section
 
 
54A or 68A(7);
 
 
(c)
any statutory instrument containing regulations made
 
 
by the Secretary of State under this Act, other than
 
 
regulations made under section 48B (3) or 62ZB (1) ;
25
 
(d)
any statutory instrument containing rules made under
 
 
this Act.”;
 
 
(b)
after subsection (3) insert—
 
 
“(3ZA)
A statutory instrument containing regulations under section
 
 
48B (3) or 62ZB (1) (whether alone or with other provision) may
30
 
not be made unless a draft of the instrument has been laid
 
 
before and approved by a resolution of each House of
 
 
Parliament.”;
 
 
(c)
after subsection (3B) insert—
 
 
“(3BA)
A statutory instrument containing regulations under section
35
 
62ZB (1) (whether alone or with other provision) may not be
 
 
made unless a draft of the instrument has been laid before and
 
 
approved by a resolution of Senedd Cymru.”
 

Page 64

51
Data protection
 
 
After section 142B of the Mental Health Act 1983 insert—
 
“142C
Data protection
 
 
(1)
This section applies to a duty or power to process information that is
 
 
imposed or conferred by or under any provision of this Act.
5
 
(2)
A duty or power to which this section applies does not require or
 
 
authorise the processing of information which would contravene the
 
 
data protection legislation (but the duty or power is to be taken into
 
 
account in determining whether the processing would contravene that
 
 
legislation).
10
 
(3)
In this section “the data protection legislation” has the same meaning
 
 
as in the Data Protection Act 2018 (see section 3 of that Act).”
 

General

 
52
Power of Secretary of State to make consequential provision
 
 
(1)
The Secretary of State may by regulations made by statutory instrument make
15
 
provision that is consequential on this Act.
 
 
(2)
Regulations under this section may amend, repeal or revoke provision made
 
 
by or under primary legislation passed—
 
 
(a)
before this Act, or
 
 
(b)
later in the same session of Parliament as this Act.
20
 
(3)
In this section “primary legislation” means—
 
 
(a)
an Act, or
 
 
(b)
an Act or Measure of Senedd Cymru.
 
 
(4)
A statutory instrument containing regulations under this section is subject to
 
 
annulment in pursuance of a resolution of either House of Parliament.
25
53
Power of Welsh Ministers to make consequential provision
 
 
(1)
The Welsh Ministers may by regulations made by statutory instrument make
 
 
provision that is consequential on this Act.
 
 
(2)
The only provision that may be made by virtue of this section is provision
 
 
that would be within the legislative competence of Senedd Cymru if contained
30
 
in an Act of the Senedd.
 
 
(3)
Regulations under this section may amend, repeal or revoke provision made
 
 
by or under primary legislation passed—
 
 
(a)
before this Act, or
 
 
(b)
later in the same session of Parliament as this Act.
35
 
(4)
In this section “primary legislation” means—
 
 
(a)
an Act, or
 

Page 65

 
(b)
an Act or Measure of Senedd Cymru.
 
 
(5)
A statutory instrument containing regulations under this section is subject to
 
 
annulment in pursuance of a resolution of Senedd Cymru.
 
54
Extent
 
 
(1)
An amendment or repeal made by this Act has the same extent as the
5
 
provision amended or repealed.
 
 
(2)
This section, section 52 and sections 55 and 56 extend to England and Wales,
 
 
Scotland and Northern Ireland.
 
55
Commencement
 
 
(1)
Sections 29 (2) , 31 , 34 , 35 (1) and (3) (b) , 37 and 38 come into force at the end
10
 
of the period of two months beginning with the day on which this Act is
 
 
passed.
 
 
(2)
Sections 52 to 54 , this section and section 56 come into force on the day on
 
 
which this Act is passed.
 
 
(3)
Except as mentioned in subsections (1) and (2) , this Act comes into force on
15
 
such day as the Secretary of State may by regulations appoint.
 
 
(4)
Regulations under this section are to be made by statutory instrument.
 
 
(5)
Different days may be appointed under subsection (3) for different purposes.
 
 
(6)
The Secretary of State may by regulations make transitional or saving provision
 
 
in connection with the coming into force of any provision of this Act.
20
 
(7)
The power to make regulations under subsection (6) includes power to make
 
 
different provision for different purposes.
 
 
(8)
Transitional and savings made by regulations under subsection (6) are
 
 
additional, and without prejudice, to those made by any other provision of
 
 
this Act.
25
56
Short title
 
 
This Act may be cited as the Mental Health Act 2025.
 

Page 66

Schedules

 
 
Schedule 1
section 3 (4)
 

Application of the 1983 Act to autism and learning disability: amendments

 

and transitory provision

 

Amendments of Part 2 of the Mental Health Act 1983

5
 
1
Part 2 of the Mental Health Act 1983 (compulsory admission to hospital
 
 
and guardianship) is amended as follows.
 
 
2
In section 3 (admission for treatment), in subsection (2), for paragraph (a)
 
 
substitute—
 
 
“(a)
the patient is suffering from psychiatric disorder of a nature
10
 
or degree which makes it appropriate for the patient to
 
 
receive medical treatment in a hospital,”.
 
 
3
In section 7 (application for guardianship), in subsection (2), for paragraph
 
 
(a) substitute—
 
 
“(a)
the patient is suffering from—
15
 
(i)
psychiatric disorder,
 
 
(ii)
autism, or
 
 
(iii)
learning disability which has serious behavioural
 
 
consequences,
 
 
of a nature or degree which warrants the patient’s reception
20
 
into guardianship under this section, and”.
 
 
4
(1)
Section 17A (community treatment orders) is amended as follows.
 
 
(2)
In subsection (5), for paragraph (a) substitute—
 
 
“(a)
the patient is suffering from psychiatric disorder of a nature
 
 
or degree which makes it appropriate for the patient to
25
 
receive medical treatment,”.
 
 
(3)
In subsection (6), for “mental”, in both places it occurs, substitute
 
 
“psychiatric”.
 
 
5
In section 17E (power to recall community patient to hospital), in subsection
 
 
(1)(a), for “mental” substitute “psychiatric”.
30
 
6
(1)
Section 20 (renewal of authority in relation to admission for treatment and
 
 
guardianship) is amended as follows.
 
 
(2)
In subsection (4) (admission for treatment), for paragraph (a) substitute—
 
 
“(a)
the patient is suffering from psychiatric disorder of a nature
 
 
or degree which makes it appropriate for the patient to
35
 
receive medical treatment in a hospital,”.
 

Page 67

 
(3)
In subsection (7) (guardianship), for paragraph (a) substitute—
 
 
“(a)
the patient is suffering from—
 
 
(i)
psychiatric disorder,
 
 
(ii)
autism, or
 
 
(iii)
learning disability which has serious behavioural
5
 
consequences,
 
 
of a nature or degree which warrants the patient’s reception
 
 
into guardianship, and”.
 

Amendments of Part 3 of the Mental Health Act 1983

 
 
7
Part 3 of the Mental Health Act 1983 (patients concerned in criminal
10
 
proceedings or under sentence) is amended as follows.
 
 
8
Before the italic heading before section 35 insert—
 

“Application of Part 3: “relevant disorder”

 
34A
Application of Part 3: “relevant disorder”
 
 
In this Part “relevant disorder” means—
15
 
(a)
psychiatric disorder,
 
 
(b)
autism, or
 
 
(c)
learning disability which has serious behavioural
 
 
consequences.”
 
 
9
In the following places, for “mental” substitute “relevant”—
20
 
section 35 (3) (a) (remand to hospital for report);
 
 
section 36 (1) (a) (remand to hospital for treatment);
 
 
section 37 (2) (a) (orders for hospital admission or guardianship), in
 
 
each place it occurs;
 
 
section 38 (1) (a) and (b) (interim hospital orders);
25
 
section 45A (2) (a) and (b) (conditions on hospital admission);
 
 
section 47 (1) (a) and (b) (removal to hospital of prisoners under
 
 
sentence, etc);
 
 
section 48 (1) (a) (removal to hospital of other prisoners);
 
 
section 50 (1) (sentenced prisoners: power to remit or release);
30
 
section 51 (3) (a) , (4)(a) and (6)(a) (detainees: powers to remit or release);
 
 
section 52 (5) (a) (accused persons: magistrates’ court’s power);
 
 
section 53 (2) (a) (civil prisoners and immigration detainees).
 
 
10
In section 55 (interpretation)—
 
 
(a)
in subsection (1), at the appropriate place insert—
35
 
““relevant disorder” has the meaning given by section 34A ;”;
 

Page 68

 
(b)
in subsection (4), after “69(1)” insert “or 72 (1ZA) ”.
 
 
11
(1)
In Schedule 1 (application of certain provisions to patients subject to hospital
 
 
and guardianship orders), Part 1 (patients not subject to special restrictions)
 
 
is amended as follows.
 
 
(2)
In paragraph 1—
5
 
(a)
for “to 17C, 17E, 17F,” substitute “, 17B, 17C,”;
 
 
(b)
omit “20A,”.
 
 
(3)
In paragraph 2—
 
 
(a)
for “17D, 17G,” substitute “17A, 17D to 17G,”;
 
 
(b)
for “2A” substitute “2ZA”;
10
 
(c)
omit “20,”.
 
 
(4)
After paragraph 2 insert—
 
 
“2ZA
In section 17A—
 
 
(a)
in subsection (5)(a), for “psychiatric disorder” there is to
 
 
be substituted “relevant disorder (within the meaning
15
 
given by section 34A )”;
 
 
(b)
in subsection (6), for “psychiatric disorder”, in both places
 
 
it occurs, there is to be substituted “relevant disorder
 
 
(within the meaning given by section 34A )”.
 
 
2ZB
In section 17E, in subsection (1)(a), for “psychiatric disorder” there
20
 
is to be substituted “relevant disorder (within the meaning given
 
 
by section 34A )”.”
 
 
(5)
After paragraph 2A insert—
 
 
“2AA
In section 17F, after subsection (4) there is to be inserted—
 
 
“(4A)
Section 3(2) as it applies for the purposes of subsection
25
 
(4)(a) is to be read as if the reference to psychiatric
 
 
disorder were a reference to relevant disorder (within the
 
 
meaning given by section 34A ).”
 
 
(6)
In paragraph 5B (as inserted by section 28 of this Act), after sub-paragraph
 
 
(2) insert—
30
 
“(3)
In section 20(4)(a), for “psychiatric disorder” there is to be
 
 
substituted “relevant disorder (within the meaning given by
 
 
section 34A )”.”
 
 
(7)
In paragraph 5C (as inserted by section 28 of this Act), after sub-paragraph
 
 
(3) insert—
35
 
“(4)
In section 20(4)(a), for “psychiatric disorder” there is to be
 
 
substituted “relevant disorder (within the meaning given by
 
 
section 34A )”.”
 

Page 69

 
(8)
In paragraph 5D (as inserted by section 28 of this Act), after sub-paragraph
 
 
(2) insert—
 
 
“(3)
In section 20(4)(a), for “psychiatric disorder” there is to be
 
 
substituted “relevant disorder (within the meaning given by
 
 
section 34A )”.”
5
 
(9)
In paragraph 6 (as substituted by section 28 of this Act), after sub-paragraph
 
 
(3) insert—
 
 
“(4)
In section 20(4)(a), for “psychiatric disorder” there is to be
 
 
substituted “relevant disorder (within the meaning given by
 
 
section 34A )”.”
10
 
(10)
After paragraph 6 insert—
 
 
“6ZA
In section 20A, after subsection (10) there is to be inserted—
 
 
“(11)
Section 17A(5) as it applies for the purposes of subsection
 
 
(4)(b) is to be read as if the reference to psychiatric
 
 
disorder were a reference to relevant disorder (within the
15
 
meaning given by section 34A ).”
 

Amendments of Part 4 of the Mental Health Act 1983

 
 
12
Part 4 of the Mental Health Act 1983 (consent to treatment) is amended as
 
 
follows.
 
 
13
In section 56 (patients to whom Part 4 applies)—
20
 
(a)
for the heading substitute “Application of Part 4 : patients and
 
 
disorders”;
 
 
(b)
after subsection (5) insert—
 
 
“(6)
In this Part “relevant disorder”—
 
 
(a)
in relation to—
25
 
(i)
a patient falling within subsection (3) where
 
 
the patient is liable to be detained by virtue
 
 
of section 3,
 
 
(ii)
a patient falling within subsection (3), where
 
 
the patient is liable to be detained by virtue
30
 
of section 20(4), otherwise than as that
 
 
provision applies by virtue of Part 1 of
 
 
Schedule 1, or
 
 
(iii)
a patient falling within subsection (4),
 
 
means psychiatric disorder;
35
 
(b)
in relation to any other patient, means mental
 
 
disorder.”
 
 
14
In the following places, for “mental”, substitute “relevant”—
 
 
section 58(1)(b) (administration of medicine requiring consent or a
 
 
second opinion);
40

Page 70

 
section 63 (treatment not requiring consent).
 

Amendments of Part 4A of the Mental Health Act 1983

 
 
15
In Part 4A of the Mental Health Act 1983 (treatment of community patients
 
 
not recalled to hospital), for section 64A substitute—
 
“64A
Meaning of “relevant treatment”
5
 
(1)
In this Part of this Act “relevant treatment”—
 
 
(a)
in relation to a Part 3 community patient, means medical
 
 
treatment which—
 
 
(i)
is for the relevant disorder from which the patient is
 
 
suffering, and
10
 
(ii)
is not a form of treatment to which section 57 applies,
 
 
and
 
 
(b)
in relation to any other community patient, means medical
 
 
treatment which—
 
 
(i)
is for the psychiatric disorder from which the patient
15
 
is suffering, and
 
 
(ii)
is not a form of treatment to which section 57 applies.
 
 
(2)
In subsection (1)(a)—
 
 
“Part 3 community patient” means a person who is a
 
 
community patient by virtue of a community treatment order
20
 
under section 17A as applied by Part 1 of Schedule 1;
 
 
“relevant disorder” has the meaning given by section 34A .”
 

Amendments of Part 5 of the Mental Health Act 1983

 
 
16
Part 5 of the Mental Health Act 1983 (tribunals) is amended as followed.
 
 
17
(1)
Section 72 (grounds for discharge by tribunal) is amended as follows.
25
 
(2)
After subsection (1) insert—
 
 
“(1ZA)
In relation to a patient admitted to hospital in pursuance of a
 
 
hospital order (see section 55(4)), section 20(4) is to be read, for the
 
 
purposes of subsection (1)(b), as if the reference to psychiatric
 
 
disorder were a reference to relevant disorder (within the meaning
30
 
given by section 34A ).”
 
 
(3)
In subsection (1A), for “mental”, in both places it occurs, substitute
 
 
“psychiatric”.
 
 
(4)
After subsection (1A) insert—
 
 
“(1B)
In relation to a person who is a community patient by virtue of a
35
 
community treatment order under section 17A as applied by Part
 
 
1 of Schedule 1—
 
 
(a)
for the purposes of subsection (1)(c), section 17A(5) is to be
 
 
read as if the reference to psychiatric disorder were a
 

Page 71

 
reference to relevant disorder (within the meaning given by
 
 
section 34A ), and
 
 
(b)
subsection (1A) is to be read as if the references to psychiatric
 
 
disorder were references to relevant disorder (within the
 
 
meaning given by section 34A ).”
5
 
(5)
In subsection (4) (guardianship), in paragraph (a), for “mental disorder”
 
 
substitute—
 
 
“(i)
psychiatric disorder,
 
 
(ii)
autism, or
 
 
(iii)
learning disability which has serious behavioural
10
 
consequences”.
 
 
18
In section 73 (power to discharge restricted patients), after subsection (8)
 
 
insert—
 
 
“(9)
Subsection (4) of section 20 is to be read, for the purposes of this
 
 
section, as if the reference to psychiatric disorder in paragraph (a)
15
 
of that subsection were a reference to relevant disorder (within the
 
 
meaning given by section 34A ).”
 
 
19
In section 74 (restricted patients subject to restriction directions), in
 
 
subsection (6), for “(8)” substitute “(9)”.
 

Transitory modifications of the Mental Health Act 1983

20
 
20
Pending the coming into force of section 6 (3) (b) of this Act, section 20A(6)(a)
 
 
of the Mental Health Act 1983 is to be read as if—
 
 
(a)
in relation to a patient admitted to hospital in pursuance of a
 
 
hospital order (read in accordance with section 55(4) of the Mental
 
 
Health Act 1983), as if for “mental” there were substituted “relevant”;
25
 
(b)
in relation to any other patient, for “mental” there were substituted
 
 
“psychiatric”.
 
 
21
(1)
Pending the coming into force of section 7 (2) of this Act, section 72(1)(b)
 
 
and (c) and (1A) of the Mental Health Act 1983 are to be read—
 
 
(a)
in relation to a patient admitted to hospital in pursuance of a
30
 
hospital order (read in accordance with section 55(4) of the Mental
 
 
Health Act 1983) or a Part 3 community patient, as if, for “mental”,
 
 
in each place it occurs, there were substituted “relevant”;
 
 
(b)
in relation to any other patient as if for “mental”, in each place it
 
 
occurs, there were substituted “psychiatric”.
35
 
(2)
In sub-paragraph (1)(a) “Part 3 community patient” means a person who
 
 
is a community patient by virtue of a community treatment order under
 
 
section 17A as applied by Part 1 of Schedule 1 to the Mental Health Act
 
 
1983.
 
 
22
Pending the coming into force of section 7 (3) of this Act, section 72(1)(b)
40
 
of the Mental Health Act 1983 is to be read, for the purposes of section 73
 
 
of that Act, as modified by paragraph 21 (1) (a) of this Schedule.
 

Page 72

 
23
Pending the coming into force of section 8 (8) of this Act, section 64(3) of
 
 
the Mental Health Act 1983 is to be read as if for “mental” there were
 
 
substituted “relevant”.
 
 
24
Pending the coming into force of section 13 (3) (b) of this Act, section 58(1)
 
 
of the Mental Health Act 1983 is to be read as if, in the words before
5
 
paragraph (a), for “mental”, there were substituted “relevant”.
 
 
25
Pending the coming into force of section 28 (5) (d) and (e) of this Act, section
 
 
20 of the Mental Health Act 1983 is to be read as if for “psychiatric” there
 
 
were substituted “relevant”.
 
 
Schedule 2
Section 23
10

Nominated persons

 

Part 1

 

Appointment etc

 
 
1
The Mental Health Act 1983 is amended as follows.
 
 
2
Before section 31 and the italic heading before that section insert—
15

“Nominated persons: appointment and removal

 
30A
Nominated person
 
 
Schedule A1 —
 
 
(a)
confers power to appoint a nominated person for a patient
 
 
for the purposes of this Act, and
20
 
(b)
makes provision about the duration of an appointment of a
 
 
nominated person.
 
30B
Power of court to terminate appointment of nominated person
 
 
(1)
The county court may, on an application made in accordance with
 
 
the provisions of this section, make an order terminating the
25
 
appointment of a nominated person for a patient.
 
 
(2)
An order under this section may be made on the application of—
 
 
(a)
the patient,
 
 
(b)
an approved mental health professional, or
 
 
(c)
any person engaged in caring for the patient or interested
30
 
in the patient’s welfare.
 
 
(3)
An application for an order under this section may only be made
 
 
on the grounds that—
 

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(a)
the nominated person unreasonably objects to the making
 
 
of an application for admission for treatment or a
 
 
guardianship application in respect of the patient;
 
 
(b)
the nominated person has, without due regard to the welfare
 
 
of the patient or the interests of the public, exercised the
5
 
power to discharge the patient under this Part of this Act
 
 
or is likely to do so;
 
 
(c)
the nominated person unreasonably objects to the making
 
 
of a community treatment order in respect of the patient;
 
 
(d)
the patient has done anything which is clearly inconsistent
10
 
with the nominated person remaining the patient’s
 
 
nominated person;
 
 
(e)
the nominated person lacks the capacity or competence to
 
 
act as a nominated person;
 
 
(f)
the nominated person is otherwise not a suitable person to
15
 
act as a nominated person.
 
 
(4)
If, immediately before the expiry of the period for which a patient
 
 
is liable to be detained by virtue of an application for admission
 
 
for assessment, an application under this section, which is an
 
 
application made on the ground specified in subsection (3) (a) or
20
 
(b) , is pending in respect of the patient, that period is extended—
 
 
(a)
in any case, until the application under this section has been
 
 
finally disposed of, and
 
 
(b)
if an order is made in pursuance of the application under
 
 
this section, for a further period of seven days.
25
 
(5)
For the purposes of subsection (4) —
 
 
(a)
an application under this section is “pending” until it is
 
 
finally disposed of, and
 
 
(b)
an application under this section is “finally disposed of”—
 
 
(i)
when the time allowed for appealing against court’s
30
 
decision expires without an appeal being brought, or
 
 
(ii)
where an appeal is brought within that time, when
 
 
the appeal has been heard or withdrawn.
 
 
(6)
Where an order under this section terminates the appointment of
 
 
a nominated person for a patient, the person is disqualified from
35
 
being re-appointed for the period specified by the court in the order.
 
 
(7)
In this section “patient” includes any person by or for whom a
 
 
nominated person is appointed.”
 

Page 74

 
3
Before Schedule 1 insert—
 
 
“Schedule A1
Section 30A
 

Nominated person

 

Part 1

 

Appointment of nominated person by a patient

5

Right of patients etc to appoint nominated person

 
 
1
A person (the “patient”) may appoint another person to act as
 
 
their nominated person for the purposes of this Act.
 

Who can be appointed by a patient as a nominated person?

 
 
2
(1)
A person is eligible to be appointed as a nominated person under
10
 
this Part of this Schedule only if the person—
 
 
(a)
is an individual who meets the age requirement (see
 
 
sub-paragraph (2) ), and
 
 
(b)
is not disqualified by section 30B (6) (disqualification as a
 
 
result of court order terminating previous appointment
15
 
as a nominated person).
 
 
(2)
The table sets out the age requirement for a nominated person
 
 
who is an individual.
 
 
Where the patient is:
 
 
The nominated person must be:
 
 
16 or over
20
 
Under 16
 
 
18 or over
 

Appointment formalities

 
 
3
(1)
The appointment of a nominated person under this Part of this
 
 
Schedule is valid only if—
 
 
(a)
the person is eligible to be appointed as a nominated
25
 
person,
 
 
(b)
the appointment is made by an instrument in writing, and
 
 
(c)
the requirements of sub-paragraph (2) are complied with
 
 
in relation to the instrument.
 
 
(2)
The instrument appointing the nominated person must—
30
 
(a)
be signed by the patient in the presence of a health or
 
 
care professional or independent mental health advocate
 
 
(“the witness”),
 
 
(b)
contain a statement, signed by the nominated person in
 
 
the presence of the witness, that the nominated person—
35

Page 75

 
(i)
meets the age requirement (see paragraph 2 (2) ),
 
 
and
 
 
(ii)
agrees to act as the nominated person, and
 
 
(c)
contain a statement, signed by the witness, that—
 
 
(i)
the instrument was signed by the patient and the
5
 
nominated person in the presence of the witness
 
 
(whether or not at the same time),
 
 
(ii)
the witness has no reason to think that the patient
 
 
lacks capacity or competence to make the
 
 
appointment,
10
 
(iii)
the witness has no reason to think that the
 
 
nominated person lacks capacity or competence to
 
 
act as a nominated person,
 
 
(iv)
the witness has no reason to think that any fraud
 
 
or undue pressure has been used to induce the
15
 
patient to make the appointment, and
 
 
(v)
the witness has no reason to think that the
 
 
nominated person is unsuitable to act as a
 
 
nominated person.
 

Duration of appointment

20
 
4
The appointment of a nominated person under this Part of this
 
 
Schedule ceases to have effect if—
 
 
(a)
the nominated person dies;
 
 
(b)
the patient appoints a different nominated person;
 
 
(c)
the patient terminates the appointment under paragraph
25
 
5 ;
 
 
(d)
the nominated person resigns under paragraph 6 ;
 
 
(e)
the county court terminates the appointment under section
 
 
30B .
 

Termination of appointment by patient

30
 
5
(1)
The appointment of a nominated person under this Part of this
 
 
Schedule may be terminated by the patient giving the nominated
 
 
person written notice.
 
 
(2)
The notice must be—
 
 
(a)
signed by the patient in the presence of a health or care
35
 
professional or independent mental health advocate (“the
 
 
witness”), and
 
 
(b)
contain a statement, signed by the witness, that—
 
 
(i)
the notice was signed by the patient in the presence
 
 
of the witness,
40

Page 76

 
(ii)
the witness has no reason to think that the patient
 
 
lacks capacity or competence to terminate the
 
 
appointment, and
 
 
(iii)
the witness has no reason to think that any fraud
 
 
or undue pressure has been used to induce the
5
 
patient to terminate the appointment.
 

Resignation of nominated person

 
 
6
(1)
A nominated person appointed under this Part of this Schedule
 
 
may resign by giving written notice to the patient and at least
 
 
one of the persons mentioned in sub-paragraph (2).
10
 
(2)
The persons are—
 
 
(a)
an approved mental health professional;
 
 
(b)
the patient’s responsible clinician (if any);
 
 
(c)
in relation to a patient who is—
 
 
(i)
liable to be detained in pursuance of an application
15
 
for admission for assessment or treatment,
 
 
(ii)
the subject of an application for admission for
 
 
assessment or treatment, or
 
 
(iii)
a community patient,
 
 
the relevant managers;
20
 
(d)
in relation to a patient who is—
 
 
(i)
subject to guardianship in pursuance of a
 
 
guardianship application, or
 
 
(ii)
the subject of a guardianship application,
 
 
the relevant local social services authority.
25
 
(3)
The notice must be signed by the nominated person.
 

Part 2

 

Appointment of nominated person by an approved mental health

 

professional

 

Power of approved mental health professional to appoint nominated person

30
 
7
(1)
Where an approved mental health professional reasonably believes
 
 
that a relevant patient—
 
 
(a)
lacks capacity or is not competent to appoint a nominated
 
 
person, and
 
 
(b)
has not appointed a person under Part 1 of this Schedule
35
 
to act as their nominated person,
 
 
the professional may appoint a person to act as the patient’s
 
 
nominated person for the purposes of this Act.
 
 
(2)
In this Schedule “relevant patient” means a person—
 

Page 77

 
(a)
who is liable to be detained in pursuance of an application
 
 
for admission for assessment or treatment,
 
 
(b)
who is the subject of an application for admission for
 
 
assessment or treatment,
 
 
(c)
in relation to whom an approved mental health
5
 
professional is considering making an application for
 
 
admission for assessment or treatment,
 
 
(d)
who is a community patient,
 
 
(e)
who is subject to guardianship in pursuance of a
 
 
guardianship application,
10
 
(f)
who is the subject of a guardianship application, or
 
 
(g)
in relation to whom an approved mental health
 
 
professional is considering making a guardianship
 
 
application.
 

Who can be appointed by an approved mental health professional as a nominated

15

person?

 
 
8
A person is eligible to be appointed as a nominated person under
 
 
this Part of this Schedule only if the person—
 
 
(a)
is an individual who meets the age requirement (see
 
 
paragraph 2 (2) ) or is a local authority, and
20
 
(b)
is not disqualified by 30B (6) (disqualification as a result
 
 
of court order terminating previous appointment as a
 
 
nominated person).
 

Selection of nominated person

 
 
9
(1)
This paragraph applies where an approved mental health
25
 
professional is deciding who to appoint as a nominated person
 
 
for a relevant patient who is aged 16 or over.
 
 
(2)
If the relevant patient has a competent donee or deputy who is
 
 
willing to act as the nominated person, the approved mental
 
 
health professional must appoint the donee or deputy.
30
 
(3)
In any other case, the approved mental health professional must,
 
 
in deciding who to appoint, take into account the relevant
 
 
patient’s past and present wishes and feelings so far as reasonably
 
 
ascertainable.
 
 
(4)
In this paragraph—
35
 
(a)
“donee” means a donee of a lasting power of attorney
 
 
(within the meaning of section 9 of Mental Capacity Act
 
 
2005) created by the patient;
 
 
(b)
“deputy” means a deputy appointed for the patient by
 
 
the Court of Protection under section 16 of that Act;
40
 
(c)
a donee or deputy is “competent” if the scope of the
 
 
authority conferred on them as donee or deputy would
 

Page 78

 
extend to taking decisions of the kind taken by a
 
 
nominated person.
 
 
10
(1)
This paragraph applies where an approved mental health
 
 
professional is deciding who to appoint as a nominated person
 
 
for a relevant patient who is aged under 16.
5
 
(2)
If a person within the following list is willing to act as the
 
 
nominated person, the approved mental health professional must
 
 
appoint such a person (giving preference to those mentioned in
 
 
paragraph (a) )—
 
 
(a)
a local authority with parental responsibility for the
10
 
relevant patient;
 
 
(b)
any other person who has parental responsibility for the
 
 
relevant patient.
 
 
(3)
In any other case, the approved mental health professional must,
 
 
in deciding who to appoint, take into account the relevant
15
 
patient’s past and present wishes and feelings so far as reasonably
 
 
ascertainable.
 
 
(4)
In this paragraph—
 
 
(a)
“deputy” means a deputy appointed for the patient by
 
 
the Court of Protection under section 16 of that Act;
20
 
(b)
a deputy is “competent” if the scope of the authority
 
 
conferred on them as donee or deputy would extend to
 
 
taking decisions of the kind taken by a nominated person.
 

Appointment formalities

 
 
11
The appointment of a nominated person by an approved mental
25
 
health professional is valid only if—
 
 
(a)
the person is eligible to be appointed as a nominated
 
 
person (see paragraph 8 ),
 
 
(b)
the person agrees to act as the nominated person, and
 
 
(c)
the appointment is made by an instrument in writing and
30
 
signed by the professional.
 

Notification of appointment

 
 
12
(1)
Where an approved mental health professional appoints a
 
 
nominated person under this Part of this Schedule, the
 
 
professional must—
35
 
(a)
if the appointment relates to a relevant patient falling
 
 
within paragraph 7 (2) (a) to (d) , notify the relevant
 
 
managers;
 
 
(b)
if the appointment relates to a relevant patient falling
 
 
within paragraph 7 (2) (e) to (g) , notify the relevant local
40
 
social services authority.
 

Page 79

 
(2)
A person who is notified under sub-paragraph (1) of the
 
 
appointment of a nominated person must take such steps as the
 
 
person considers appropriate to inform the relevant patient of
 
 
the appointment.
 

Duration of appointment

5
 
13
The appointment of a nominated person under this Part of this
 
 
Schedule ceases to have effect if—
 
 
(a)
the nominated person dies;
 
 
(b)
an approved mental health professional appoints a
 
 
different nominated person for the relevant patient;
10
 
(c)
an approved mental health professional terminates the
 
 
appointment under paragraph 14 ;
 
 
(d)
the relevant patient terminates the appointment under
 
 
paragraph 15 ;
 
 
(e)
the nominated person resigns under paragraph 16 ;
15
 
(f)
the county court terminates the appointment under section
 
 
30B ;
 
 
(g)
the relevant patient appoints a different nominated person
 
 
under Part 1 of this Schedule;
 
 
(h)
the person for whom the nominated person was appointed
20
 
ceases to be a relevant patient.
 

Termination of appointment by approved mental health professional

 
 
14
(1)
Where an approved mental health professional has appointed a
 
 
nominated person for a relevant patient, an approved mental
 
 
health professional may terminate the appointment by giving
25
 
written notice to the nominated person and the patient.
 
 
(2)
The appointment may only be terminated on the grounds that—
 
 
(a)
the person lacks capacity to exercise the functions of a
 
 
nominated person,
 
 
(b)
the person is otherwise not a suitable person to act as the
30
 
nominated person, or
 
 
(c)
the relevant patient has regained capacity or competence
 
 
to appoint a nominated person under Part 1 of this
 
 
Schedule.
 
 
(3)
Where an approved mental health professional terminates the
35
 
appointment of a nominated person under this Part of this
 
 
Schedule, the professional must—
 
 
(a)
if the appointment relates to a relevant patient falling
 
 
within paragraph 7 (2) (a) to (d) , notify the relevant
 
 
managers;
40

Page 80

 
(b)
if the appointment relates to a relevant patient falling
 
 
within paragraph 7 (2) (e) to (g) , notify the relevant local
 
 
social services authority.
 

Termination of appointment by relevant patient

 
 
15
(1)
The appointment of a nominated person under this Part of this
5
 
Schedule may be terminated by the relevant patient giving the
 
 
nominated person written notice.
 
 
(2)
The notice must be—
 
 
(a)
signed by the relevant patient in the presence of a health
 
 
or care professional or independent mental health advocate
10
 
(“the witness”), and
 
 
(b)
contain a statement, signed by the witness, that—
 
 
(i)
the notice was signed by the patient in the presence
 
 
of the witness,
 
 
(ii)
the witness has no reason to think that the patient
15
 
lacks capacity or competence to terminate the
 
 
appointment, and
 
 
(iii)
the witness has no reason to think that any fraud
 
 
or undue pressure has been used to induce the
 
 
patient to terminate the appointment.
20

Resignation of nominated person

 
 
16
(1)
A nominated person appointed by an approved mental health
 
 
professional may resign by giving written notice to the patient
 
 
and at least one of the persons mentioned in sub-paragraph (2).
 
 
(2)
The persons are—
25
 
(a)
an approved mental health professional;
 
 
(b)
the relevant patient’s responsible clinician (if any);
 
 
(c)
in relation to a relevant patient falling within paragraph
 
 
7 (2) (a) , (b) or (d) , the relevant managers;
 
 
(d)
in relation to a relevant patient falling within paragraph
30
 
7 (2) (e) or (f) , the relevant local social services authority.
 
 
(3)
The notice must be signed by the nominated person.
 

Part 3

 

Definitions

 

“Health or care professional”

35
 
17
In this Schedule “health or care professional” means—
 
 
(a)
a registered medical practitioner;
 
 
(b)
a registered nurse or midwife;
 

Page 81

 
(c)
a person registered as a member of a profession to which
 
 
the Health and Social Work Professions Order 2001 (S.I.
 
 
2002/254) for the time being extends;
 
 
(d)
a person registered as a social worker in the register
 
 
maintained by Social Work England under section 39(1)
5
 
of the Children and Social Work Act 2017;
 
 
(e)
a person registered as a social worker in the register
 
 
maintained by Social Care Wales under section 80 of the
 
 
Regulation and Inspection of Social Care (Wales) Act 2016
 
 
(anaw 2).
10

“Independent mental health advocate”

 
 
18
In this Schedule “independent mental health advocate”, in relation
 
 
to a person appointing a nominated person, means an
 
 
independent mental health advocate appointed under
 
 
arrangements made under section 130A or 130E.
15

“Capacity”

 
 
19
In relation to a person who has attained the age of 16 years—
 
 
(a)
references in this Schedule to lacking capacity are to
 
 
lacking capacity within the meaning of the Mental
 
 
Capacity Act 2005, and
20
 
(b)
references in this Schedule to having, ceasing to have or
 
 
gaining capacity are to be read accordingly.
 

“Relevant managers”

 
 
20
References in this Schedule to “the relevant managers” are—
 
 
(a)
in relation to a patient who is liable to be detained under
25
 
this Act in a hospital or registered establishment, the
 
 
managers of the hospital or registered establishment;
 
 
(b)
in relation to a patient who is the subject of an application
 
 
for admission for assessment or treatment, the managers
 
 
of the hospital or registered establishment to which
30
 
admission is sought;
 
 
(c)
in relation to a patient in relation to whom an approved
 
 
mental health professional is considering making an
 
 
application for admission for assessment or treatment, the
 
 
managers of the hospital or registered establishment to
35
 
which admission would be sought;
 
 
(d)
in relation to a community patient, the managers of the
 
 
responsible hospital.
 

Page 82

“Relevant local social services authority”

 
 
21
References in this Schedule to “the relevant local social services
 
 
authority” are—
 
 
(a)
in relation to a person who is subject to guardianship—
 
 
(i)
where the patient is subject to the guardianship of
5
 
a local social services authority, to that authority;
 
 
(ii)
where the patient is subject to the guardianship of
 
 
a person other than a local social services authority,
 
 
to the local social services authority for the area
 
 
in which that person resides;
10
 
(b)
in relation to a person who is the subject of a guardianship
 
 
application, or in relation to whom an approved mental
 
 
health professional is considering making a guardianship
 
 
application—
 
 
(i)
where the application names or would name a
15
 
local social services authority as guardian, to that
 
 
authority;
 
 
(ii)
where the application names or would name a
 
 
person other than a local social services authority
 
 
as guardian, to the local social services authority
20
 
for the area in which the person named as
 
 
guardian resides.
 

“Relevant patient”

 
 
22
In this Schedule “relevant patient” has the meaning given by
 
 
paragraph 7 (2) .”
25

Part 2

 

Functions of nominated person

 
 
4
The Mental Health Act 1983 is amended as follows.
 
 
5
In section 4 (admission for assessment in cases of emergency), in subsection
 
 
(2), for “the nearest relative of the patient” substitute “the patient’s
30
 
nominated person”.
 
 
6
(1)
Section 11 (general provisions as to applications) is amended as follows.
 
 
(2)
In subsection (1), for “the nearest relative of the patient” substitute “the
 
 
patient’s nominated person”.
 
 
(3)
In subsection (3)—
35
 
(a)
for “the nearest relative of the patient” substitute “the patient’s
 
 
nominated person”;
 
 
(b)
for “the nearest relative” substitute “the nominated person”.
 

Page 83

 
7
In section 13 (duty of approved mental health professionals to make
 
 
applications for admission or guardianship), in subsection (4), for “the
 
 
nearest relative”, in both places it occurs, substitute “the nominated person”.
 
 
8
In section 14 (social reports), for “nearest relative” substitute “nominated
 
 
person”.
5
 
9
In section 23 (discharge of patients), in subsection (2)(a), (b) and (c), for
 
 
“the nearest relative of the patient” substitute “the patient’s nominated
 
 
person”.
 
 
10
In section 24 (visiting and examination of patient), in subsection (1), for
 
 
“the nearest relative”, in both places it occurs, substitute “the nominated
10
 
person”.
 
 
11
Omit sections 26 to 30 and the italic heading before section 26.
 
 
12
In section 32 (regulations for purposes of Part), in subsection (2)—
 
 
(a)
at the end of paragraph (c) insert “and”;
 
 
(b)
omit paragraph (e) and the “and” before it.
15
 
13
In section 33 (special provisions as to wards of court), in subsection (2), for
 
 
“nearest relative” substitute “nominated person”.
 
 
14
In section 66 (applications to tribunals), in subsection (1), in sub-paragraph
 
 
(ii), for “his nearest relative” substitute “the patient’s nominated person”.
 
 
15
In section 69 (applications to tribunals concerning patients subject to hospital
20
 
and guardianship orders), in subsection (1)(a) and (b)(ii), for “the nearest
 
 
relative of the patient” substitute “the patient’s nominated person”.
 
 
16
In section 116 (welfare of certain hospital patients), in subsection (2) omit
 
 
paragraph (c) and the “or” before it.
 
 
17
In section 118 (code of practice), in subsection (1)—
25
 
(a)
omit the “and” at the end of paragraph (a);
 
 
(b)
after paragraph (b) insert—
 
 
“(c)
for the guidance of nominated persons in relation to
 
 
their functions under this Act and for the guidance
 
 
of health or care professionals within the meaning of
30
 
paragraph 17 of Schedule A1 in respect of their
 
 
functions under that Schedule;”.
 
 
18
In section 130B (arrangements in relation to independent mental advocates:
 
 
England), in subsection (5)(a), for “nearest relative” substitute “nominated
 
 
person”.
35
 
19
In section 130D (duty to give information about independent mental health
 
 
advocates), in subsection (5), for “nearest relative” substitute “nominated
 
 
person”.
 
 
20
In section 130H (independent mental health advocates for Wales:
 
 
supplementary powers and duties), in subsection (3)(b), for “nearest relative”
40
 
substitute “nominated person”.
 

Page 84

 
21
In section 130K (duty to give information about independent mental health
 
 
advocates to Welsh qualifying compulsory patients), in subsection (6)(a),
 
 
for “nearest relative” substitute “nominated person”.
 
 
22
In section 132 (duty of managers of hospitals to give information to detained
 
 
patients), in subsection (4), for “nearest relative” substitute “nominated
5
 
person”.
 
 
23
In section 132A (duty of managers of hospitals to give information to
 
 
community patients), in subsection (3), for “nearest relative” substitute
 
 
“nominated person”.
 
 
24
(1)
Section 133 (duty of managers of hospitals to give information to community
10
 
patients) is amended as follows.
 
 
(2)
In the heading for “nearest relatives” substitute “nominated persons”.
 
 
(3)
In subsection (1)—
 
 
(a)
for “nearest relative”, in the first place it occurs, substitute
 
 
“nominated person”;
15
 
(b)
for “nearest relative of the patient” substitute “patient’s nominated
 
 
person”.
 
 
(4)
In subsections (1B) and (2), for “nearest relative” substitute “nominated
 
 
person”.
 
 
25
(1)
Section 145(1) (interpretation) is amended as follows.
20
 
(2)
Omit the definition of “nearest relative”.
 
 
(3)
At the appropriate place insert—
 
 
““nominated person” , in relation to a patient, means a person for the
 
 
time being appointed by or for the patient under Schedule A1;”.
 

Part 3

25

Patients concerned in criminal proceedings etc: functions of nominated

 

person

 
 
26
The Mental Health Act 1983 is amended as follows.
 
 
27
After section 36 (but before the italic heading after that section) insert—
 
“36A
Remands to hospital: nominated person
30
 
Sections 30A and 30B and Schedule A1 (nominated person) apply
 
 
in relation to a person remanded to hospital under section 35 or 36
 
 
as they apply in relation to a person subject to an order under
 
 
section 41 (see section 41(3) and Part 2 of Schedule 1).”
 
 
28
In section 38 (interim hospital orders), after subsection (7) insert—
35
 
“(8)
Sections 30A and 30B and Schedule A1 (nominated person) apply
 
 
in relation to an offender subject to an interim hospital order as
 

Page 85

 
they apply in relation to a person subject to an order under section
 
 
41 (see section 41(3) and Part 2 of Schedule 1).”
 
 
29
In Part 1 of Schedule 1 (application of certain provisions to patients subject
 
 
to hospital and guardianship orders who are not subject to special
 
 
restrictions)—
5
 
(a)
in paragraph 1, for “26 to 28” substitute “ 30A ”;
 
 
(b)
in paragraph 2—
 
 
(i)
after “23” insert “, 30B ”;
 
 
(ii)
after “68” insert “and Schedule A1 ”;
 
 
(iii)
for “10” substitute “ 11 ”;
10
 
(c)
in paragraph 8(b), for “nearest relative” substitute “nominated
 
 
person”;
 
 
(d)
after paragraph 8 insert—
 
 
“8ZA
In section 30B —
 
 
(a)
in subsection (2) (b) the reference to an approved
15
 
mental health professional is to be read as a
 
 
reference to the responsible clinician;
 
 
(b)
in subsection (3) , paragraphs (a) and (b) are to be
 
 
omitted.”;
 
 
(e)
in paragraph 9 for “paragraph (ii)” substitute “paragraphs (ia), (ib)
20
 
and (ii)”;
 
 
(f)
after paragraph 10 insert—
 
 
“11
In Schedule A1 , references to an approved mental health
 
 
professional are to be read as references to the responsible
 
 
clinician.”
25
 
30
In Part 2 of Schedule 1 (application of certain provisions to patients subject
 
 
to hospital and guardianship orders who are subject to special restrictions)—
 
 
(a)
in paragraph 1, after “Sections” insert “ 30A ,”;
 
 
(b)
in paragraph 2—
 
 
(i)
after “23” insert “, 30B ”;
30
 
(ii)
after “34” insert “and Schedule A1 ”;
 
 
(iii)
for “8” substitute “ 9 ”;
 
 
(c)
in paragraph 5—
 
 
(i)
omit the “and” at the end of paragraph (b);
 
 
(ii)
at the end of paragraph (c) insert “and
35
 
“(d)
in subsection (3A), after paragraph (a) there
 
 
is to be inserted—
 
 
“(za)
is inappropriate,”;
 
 
(d)
in paragraph 7(b)(i), for “the nearest relative of the patient” substitute
 
 
“the patient’s nominated person”;
40
 
(e)
after paragraph 7 insert—
 
 
“7A
In section 30B —
 

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(a)
in subsection (2) (b) the reference to an approved
 
 
mental health professional is to be read as a
 
 
reference to the responsible clinician;
 
 
(b)
in subsection (3) , paragraphs (a) to (c) are to be
 
 
omitted.”;
5
 
(f)
after paragraph 8 insert—
 
 
“9
In Schedule A1 , references to an approved mental health
 
 
professional are to be read as references to the responsible
 
 
clinician.”
 
 
Schedule 3
section 39
10

Independent mental health advocates

 
 
1
The Mental Health Act 1983 is amended as follows.
 
 
2
(1)
Section 118 (code of practice) is amended as follows.
 
 
(2)
In subsection (1), after paragraph (c) (as inserted by Schedule 2 to this Act)
 
 
insert—
15
 
“(d)
for the guidance of independent mental health advocates
 
 
appointed under arrangements made under section 130A or
 
 
130E;”.
 
 
(3)
Omit subsection (1A).
 
 
3
(1)
Section 130A (independent mental health advocates) is amended as follows.
20
 
(2)
In subsection (1), for “qualifying patients” substitute “English qualifying
 
 
patients”.
 
 
(3)
After subsection (1) insert—
 
 
“(1A)
In this Part “English qualifying patient” means—
 
 
(a)
an English qualifying compulsory patient (see section 130C),
25
 
or
 
 
(b)
an English qualifying informal patient (see section 130CA ).”
 
 
4
(1)
Section 130B (arrangements under section 130A) is amended as follows.
 
 
(2)
In subsection (1), for “a qualifying patient”, in both places it occurs,
 
 
substitute “an English qualifying compulsory patient”.
30
 
(3)
In subsection (2)—
 
 
(a)
for “a qualifying patient” substitute “an English qualifying
 
 
compulsory patient”;
 
 
(b)
omit the “and” at the end of paragraph (a);
 
 
(c)
after paragraph (b) insert—
35
 
“(c)
help (by way of representation or otherwise)—
 

Page 87

 
(i)
for patients who wish to become involved, or
 
 
more involved, in decisions made about their
 
 
care or treatment, or care or treatment
 
 
generally; and
 
 
(ii)
for patients who wish to complain about their
5
 
care or treatment; and
 
 
(d)
the provision of information about other services
 
 
which are or may be available to the patient.”
 
 
(4)
After subsection (2) insert—
 
 
“(2A)
The help available to an English qualifying informal patient under
10
 
arrangements under section 130A must include help in obtaining
 
 
information about and understanding–
 
 
(a)
what (if any) medical treatment is given to the patient or is
 
 
proposed or discussed in the patient’s case,
 
 
(b)
why it is given, proposed or discussed, and
15
 
(c)
the authority under which it is, or would be, given.
 
 
(2B)
The help available under the arrangements to an English qualifying
 
 
informal patient must also include—
 
 
(a)
help (by way of representation or otherwise)—
 
 
(i)
for patients who wish to become involved, or more
20
 
involved, in decisions made about their care or
 
 
treatment, or care or treatment generally, and
 
 
(ii)
for patients who wish to complain about their care
 
 
or treatment, and
 
 
(b)
the provision of information about other services which are
25
 
or may be available to the patient.
 
 
(2C)
Arrangements under section 130A must require a provider of
 
 
advocacy services, on becoming aware of an English qualifying
 
 
compulsory patient for whom they are responsible, to arrange for
 
 
an independent mental health advocate to visit and interview the
30
 
patient (if possible) with a view to determining—
 
 
(a)
whether the patient has the capacity or is competent to take
 
 
a decision about whether to receive help from an
 
 
independent mental health advocate,
 
 
(b)
if the patient does have that capacity or competence, whether
35
 
the patient wishes to receive such help, and
 
 
(c)
if the patient does not have that capacity or competence,
 
 
whether it is nonetheless in the patient’s best interests to
 
 
receive such help (which, if so, is to be provided under the
 
 
arrangements).
40
 
(2D)
For the purposes of subsection (2C) —
 
 
(a)
“provider of advocacy services” means a person required by
 
 
arrangements under section 130A to make available the
 
 
services of independent mental health advocates, and
 

Page 88

 
(b)
a provider of advocacy services is “responsible” for an
 
 
English qualifying compulsory patient if the arrangements
 
 
require the provider to make available the services of an
 
 
independent mental health advocate to help that patient.”
 
 
(5)
In subsection (3), for “the arrangements” substitute “arrangements under
5
 
section 130A”.
 
 
(6)
In subsection (6) for “declining to be provided with” substitute “refusing
 
 
consent to the provision of”.
 
 
(7)
After subsection (6) insert—
 
 
“(6A)
A reference in this section to a patient who has capacity is to be
10
 
read in accordance with the Mental Capacity Act 2005.””.
 
 
(8)
In subsection (7) omit paragraph (a).
 
 
5
(1)
Section 130C (section 130A: supplemental) is amended as follows.
 
 
(2)
For the heading, substitute ““English qualifying compulsory patients””.
 
 
(3)
Omit subsection (1).
15
 
(4)
In subsection (2) for “A patient is a qualifying patient” substitute “For the
 
 
purposes of this Part a patient is an English qualifying compulsory patient”.
 
 
(5)
In subsection (3)—
 
 
(a)
in the words before paragraph (a), for “A patient is also a qualifying
 
 
patient” substitute “For the purposes of this Part a patient is also
20
 
an English qualifying compulsory patient”;
 
 
(b)
in paragraphs (a) and (b), for “a qualifying patient” substitute “an
 
 
English qualifying compulsory patient”.
 
 
(6)
In subsection (4), for “a qualifying patient”, in both places it occurs,
 
 
substitute “an English qualifying compulsory patient”.
25
 
(7)
Omit subsections (4A) and (4B).
 
 
6
After section 130C insert—
 
“130CA
“English qualifying informal patients”
 
 
For the purposes of this Part a patient is an “English qualifying
 
 
informal patient” if—
30
 
(a)
the patient is an in-patient at a hospital or registered
 
 
establishment situated in England,
 
 
(b)
the patient is receiving treatment for, or assessment in
 
 
relation to, mental disorder at the hospital or registered
 
 
establishment, and
35
 
(c)
no application, order, direction or report renders the patient
 
 
liable to be detained under this Act.
 

Page 89

 
130CB
Local social services authority responsible for making
 
 
arrangements under section 130A(1)
 
 
(1)
For the purposes of section 130A(1) a local social services authority
 
 
is responsible for an English qualifying patient if—
 
 
(a)
in the case of an English qualifying compulsory patient
5
 
falling within section 130C(2)(a), the hospital or registered
 
 
establishment in which the patient is liable to be detained
 
 
is situated in that authority’s area;
 
 
(b)
in the case of an English qualifying compulsory patient
 
 
falling within section 130C(2)(b), that authority is the
10
 
responsible local social services authority within the meaning
 
 
of section 34(3);
 
 
(c)
in the case of an English qualifying compulsory patient
 
 
falling within section 130C(2)(c), the responsible hospital is
 
 
situated in that authority’s area;
15
 
(d)
in the case of an English qualifying compulsory patient
 
 
falling within section 130C(3)—
 
 
(i)
in a case where the patient has capacity or is
 
 
competent to do so, the patient nominates that
 
 
authority as responsible for the purposes of section
20
 
130A, or
 
 
(ii)
in any other case, a donee or deputy or the Court of
 
 
Protection, or a person engaged in caring for the
 
 
patient or interested in the patient’s welfare,
 
 
nominates that authority on the patient’s behalf as
25
 
responsible for the purposes of that section;
 
 
(e)
in the case of an English qualifying informal patient, the
 
 
hospital or registered establishment to which the patient is
 
 
admitted as an in-patient is situated in that authority’s area.
 
 
(2)
In subsection (1) (d) —
30
 
(a)
the reference to a patient who has capacity is to be read in
 
 
accordance with the Mental Capacity Act 2005;
 
 
(b)
the reference to a donee is to a donee of a lasting power of
 
 
attorney (within the meaning of section 9 of that Act) created
 
 
by the patient, where the donee is acting within the scope
35
 
of their authority and in accordance with that Act;
 
 
(c)
the reference to a deputy is to a deputy appointed for the
 
 
patient by the Court of Protection under section 16 of that
 
 
Act, where the deputy is acting within the scope of the their
 
 
authority and in accordance with that Act.
40
 
130CC
Duty to notify providers of person’s eligibility for advocacy
 
 
services
 
 
(1)
The responsible person in relation to an English qualifying patient
 
 
must take such steps as are practicable to give the appropriate
 

Page 90

 
provider of advocacy services the required information about the
 
 
patient.
 
 
(2)
In this section “the responsible person” means—
 
 
(a)
in relation to an English qualifying compulsory patient falling
 
 
within section 130C(2)(a), the managers of the hospital or
5
 
registered establishment in which the patient is liable to be
 
 
detained;
 
 
(b)
in relation to an English qualifying compulsory patient falling
 
 
within section 130C(2)(b), the responsible local social services
 
 
authority within the meaning of section 34(3);
10
 
(c)
in relation to an English qualifying compulsory patient falling
 
 
within section 130C(2)(c), the managers of the responsible
 
 
hospital;
 
 
(d)
in relation to an English qualifying compulsory patient falling
 
 
within section 130C(3), the managers of the hospital or
15
 
registered establishment in which the treatment would be
 
 
given;
 
 
(e)
in relation to an English qualifying informal patient, the
 
 
managers of the hospital or registered establishment to which
 
 
the patient is admitted as an in-patient.
20
 
(3)
In this section “appropriate provider of advocacy services”, in
 
 
relation to a patient, means the person required by arrangements
 
 
under section 130A to make available the services of an independent
 
 
mental health advocate to help that patient.
 
 
(4)
In this section “the required information”, in relation to a patient,
25
 
means such information relating to the patient as may be prescribed
 
 
in regulations made by the Secretary of State.”
 
 
7
For section 130D substitute—
 
“130DA
Duty to give information to English qualifying informal patients
 
 
(1)
The responsible person in relation to an English qualifying informal
30
 
patient must take such steps as are practicable to ensure that the
 
 
patient understands—
 
 
(a)
that help is available to the patient from an independent
 
 
mental health advocate, and
 
 
(b)
how the patient can obtain that help.
35
 
(2)
In this section “the responsible person”, in relation to an English
 
 
qualifying informal patient, means the managers of the hospital or
 
 
registered establishment to which the patient is admitted as an
 
 
in-patient.
 
 
(3)
The steps to be taken under subsection (1) must be taken as soon
40
 
as practicable after the patient becomes an English qualifying
 
 
informal patient.
 

Page 91

 
(4)
The steps that must be taken under subsection (1) include giving
 
 
the requisite information both orally and in writing.
 
 
(5)
The responsible person in relation to an English qualifying informal
 
 
patient must, except where the patient otherwise requests, take such
 
 
steps as are practicable to give the person (if any) appearing to the
5
 
responsible person to be the patient’s nominated person a copy of
 
 
any information given to the patient in writing under subsection
 
 
(1) .
 
 
(6)
The steps to be taken under subsection (5) must be taken when the
 
 
information concerned is given to the patient or within a reasonable
10
 
time thereafter.”
 
Amendments

No amendments available.