Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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71 (1) This paragraph applies if--

(a) the supervisory body obtain an assessment under paragraph 69,

(b) the assessment comes to the conclusion that the relevant person is a detained resident, and

(2) This Schedule (including Part 5) applies as if the managing authority of the relevant hospital or care home had, in accordance with Part 4, requested the supervisory body to give a standard authorisation in relation to the relevant person.

(3) The managing authority of the relevant hospital or care home must supply the supervisory body with the information (if any) which the managing authority would, by virtue of paragraph 31, have had to include in a request for a standard authorisation.

(4) The supervisory body must notify the persons specified in paragraph 69(8)--

(a) of the outcome of the assessment obtained under paragraph 69, and

(b) that this Schedule applies as mentioned in sub-paragraph (2).

72 (1) This paragraph applies if--

(a) the supervisory body obtain an assessment under paragraph 69, and

(b) the assessment comes to the conclusion that the relevant person is not a detained resident.

(2) The supervisory body must notify the persons specified in paragraph 69(8) of the outcome of the assessment.

73 (1) This paragraph applies if--

(a) the supervisory body obtain an assessment under paragraph 69,

(b) the assessment comes to the conclusion that the relevant person is a detained resident, and

(2) The supervisory body must notify the persons specified in paragraph 69(8)--

(a) of the outcome of the assessment, and

(b) that it appears to the supervisory body that the detention is authorised.

Part 5 Urgent authorisations

Managing authority to give authorisation

74 Only the managing authority of the relevant hospital or care home may give an urgent authorisation.

75 The managing authority may give an urgent authorisation only if they are required to do so by paragraph 76 (as read with paragraph 77).

Duty to give authorisation

76 (1) The managing authority must give an urgent authorisation in either of the following cases.

(2) The first case is where--

(a) the managing authority are required to make a request under paragraph 24 or 25 for a standard authorisation, and

(b) they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before they make the request.

(3) The second case is where--

(a) the managing authority have made a request under paragraph 24 or 25 for a standard authorisation, and

(b) they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before the request is disposed of.

(4) References in this paragraph to the detention of the relevant person are references to the detention to which paragraph 24 or 25 relates.

(5) This paragraph is subject to paragraph 77.

77 (1) This paragraph applies where the managing authority have given an urgent authorisation ("the original authorisation") in connection with a case where a person is, or is to be, a detained resident ("the existing detention").

(2) No new urgent authorisation is to be given under paragraph 76 in connection with the existing detention.

(3) But the managing authority may request the supervisory body to extend the duration of the original authorisation.

(4) Only one request under sub-paragraph (3) may be made in relation to the original authorisation.

(5) Paragraphs 84 to 86 apply to any request made under sub-paragraph (3).

Terms of authorisation

78 (1) If the managing authority decide to give an urgent authorisation, they must decide the period during which the authorisation is to be in force.

(2) That period must not exceed 7 days.

Form of authorisation

79 An urgent authorisation must be in writing.

80 An urgent authorisation must state the following things--

(a) the name of the relevant person;

(b) the name of the relevant hospital or care home;

(d) the purpose for which the authorisation is given.

81 (1) If the name of the relevant hospital or care home changes, the urgent authorisation is to be read as if it stated the current name of the hospital or care home.

(2) But sub-paragraph (1) is subject to any provision relating to the change of name which is made in any enactment or in any instrument made under an enactment.

Duty to keep records and give copies

82 (1) This paragraph applies if an urgent authorisation is given.

(2) The managing authority must keep a written record of why they have given the urgent authorisation.

(3) As soon as practicable after giving the authorisation, the managing authority must give a copy of the authorisation to all of the following--

(a) the relevant person;

(b) any section 39A IMCA.

Duty to give information about authorisation

83 (1) This paragraph applies if an urgent authorisation is given.

(2) The managing authority of the relevant hospital or care home must take such steps as are practicable to ensure that the relevant person understands all of the following--

(a) the effect of the authorisation;

(b) the right to make an application to the court to exercise its jurisdiction under section 21A.

(3) Those steps must be taken as soon as is practicable after the authorisation is given.

(4) Those steps must include the giving of appropriate information both orally and in writing.

Request for extension of duration

84 (1) This paragraph applies if the managing authority make a request under paragraph 77 for the supervisory body to extend the duration of the original authorisation.

(2) The managing authority must keep a written record of why they have made the request.

(3) The managing authority must give the relevant person notice that they have made the request.

(4) The supervisory body may extend the duration of the original authorisation if it appears to them that--

(a) the managing authority have made the required request for a standard authorisation,

(b) there are exceptional reasons why it has not yet been possible for that request to be disposed of, and

(5) The supervisory body must keep a written record that the request has been made to them.

(6) In this paragraph and paragraphs 85 and 86--

(a) "original authorisation" and "existing detention" have the same meaning as in paragraph 77;

(b) the required request for a standard authorisation is the request that is referred to in paragraph 76(2) or (3).

85 (1) This paragraph applies if, under paragraph 84, the supervisory body decide to extend the duration of the original authorisation.

(2) The supervisory body must decide the period of the extension.

(3) That period must not exceed 7 days.

(4) The supervisory body must give the managing authority notice stating the period of the extension.

(5) The managing authority must then vary the original authorisation so that it states the extended duration.

(6) Paragraphs 82(3) and 83 apply (with the necessary modifications) to the variation of the original authorisation as they apply to the giving of an urgent authorisation.

(7) The supervisory body must keep a written record of--

(a) the outcome of the request, and

(b) the period of the extension.

86 (1) This paragraph applies if, under paragraph 84, the supervisory body decide not to extend the duration of the original authorisation.

(2) The supervisory body must give the managing authority notice stating--

(a) the decision, and

(b) their reasons for making it.

(3) The managing authority must give a copy of that notice to all of the following--

(a) the relevant person;

(b) any section 39A IMCA.

(4) The supervisory body must keep a written record of the outcome of the request.

No variation

87 (1) An urgent authorisation may not be varied except in accordance with paragraph 85.

(2) This paragraph does not affect the powers of the Court of Protection or of any other court.

When an authorisation is in force

88 An urgent authorisation comes into force when it is given.

89 (1) An urgent authorisation ceases to be in force at the end of the period stated in the authorisation in accordance with paragraph 80(c) (subject to any variation in accordance with paragraph 85).

(2) But if the required request is disposed of before the end of that period, the urgent authorisation ceases to be in force as follows.

(3) If the supervisory body are required by paragraph 50(1) to give the requested authorisation, the urgent authorisation ceases to be in force when the requested authorisation comes into force.

(4) If the supervisory body are prohibited by paragraph 50(2) from giving the requested authorisation, the urgent authorisation ceases to be in force when the managing authority receive notice under paragraph 58.

(5) In this paragraph--

"required request" means the request referred to in paragraph 76(2) or (3);
"requested authorisation" means the standard authorisation to which the required request relates.

(6) This paragraph does not affect the powers of the Court of Protection or of any other court.

90 (1) This paragraph applies if an urgent authorisation ceases to be in force.

(2) The supervisory body must give notice that the authorisation has ceased to be in force.

(3) The supervisory body must give that notice to all of the following--

(a) the relevant person;

(b) any section 39A IMCA.

(4) The supervisory body must give that notice as soon as practicable after the authorisation ceases to be in force.

Part 6 Eligibility requirement not met: suspension of standard authorisation

91 (1) This Part applies if the following conditions are met.

(2) The first condition is that a standard authorisation--

(a) has been given, and

(b) has not ceased to be in force.

(3) The second condition is that the managing authority of the relevant hospital or care home are satisfied that the relevant person has ceased to meet the eligibility requirement.

(4) But this Part does not apply if the relevant person is ineligible by virtue of paragraph 5 of Schedule 1A (in which case see Part 8).

92 The managing authority of the relevant hospital or care home must give the supervisory body notice that the relevant person has ceased to meet the eligibility requirement.

93 (1) This paragraph applies if the managing authority give the supervisory body notice under paragraph 92.

(2) The standard authorisation is suspended from the time when the notice is given.

(3) The supervisory body must give notice that the standard authorisation has been suspended to the following persons--

(a) the relevant person;

(b) the relevant person's representative;

94 (1) This paragraph applies if, whilst the standard authorisation is suspended, the managing authority are satisfied that the relevant person meets the eligibility requirement again.

(2) The managing authority must give the supervisory body notice that the relevant person meets the eligibility requirement again.

95 (1) This paragraph applies if the managing authority give the supervisory body notice under paragraph 94.

(2) The standard authorisation ceases to be suspended from the time when the notice is given.

(3) The supervisory body must give notice that the standard authorisation has ceased to be suspended to the following persons--

(a) the relevant person;

(b) the relevant person's representative;

(d) the managing authority of the relevant hospital or care home.

(4) The supervisory body must give notice under this paragraph as soon as practicable after they are given notice under paragraph 94.

96 (1) This paragraph applies if no notice is given under paragraph 94 before the end of the relevant 28 day period.

(2) The standard authorisation ceases to have effect at the end of the relevant 28 day period.

(3) The relevant 28 day period is the period of 28 days beginning with the day on which the standard authorisation is suspended under paragraph 93.

97 The effect of suspending the standard authorisation is that Part 1 ceases to apply for as long as the authorisation is suspended.

Part 7 Standard authorisations: change in supervisory responsibility

Application of this Part

98 (1) This Part applies if these conditions are met.

(2) The first condition is that a standard authorisation--

(a) has been given, and

(b) has not ceased to be in force.

(3) The second condition is that there is a change in supervisory responsibility.

(4) The third condition is that there is not a change in the place of detention (within the meaning of paragraph 25).

99 For the purposes of this Part there is a change in supervisory responsibility if--

(a) one body ("the old supervisory body") have ceased to be supervisory body in relation to the standard authorisation, and

(b) a different body ("the new supervisory body") have become supervisory body in relation to the standard authorisation.

Effect of change in supervisory responsibility

100 (1) The new supervisory body becomes the supervisory body in relation to the authorisation.

(2) Anything done by or in relation to the old supervisory body in connection with the authorisation has effect, so far as is necessary for continuing its effect after the change, as if done by or in relation to the new supervisory body.

(3) Anything which relates to the authorisation and which is in the process of being done by or in relation to the old supervisory body at the time of the change may be continued by or in relation to the new supervisory body.

(4) But--

(a) the old supervisory body do not, by virtue of this paragraph, cease to be liable for anything done by them in connection with the authorisation before the change; and

(b) the new supervisory body do not, by virtue of this paragraph, become liable for any such thing.

Part 8 Standard authorisations: review

Application of this Part

101 (1) This Part applies if a standard authorisation--

(a) has been given, and

(b) has not ceased to be in force.

(2) Paragraphs 102 to 122 are subject to paragraphs 123 to 125.

Review by supervisory body

102 (1) The supervisory body may at any time carry out a review of the standard authorisation in accordance with this Part.

(2) The supervisory body must carry out such a review if they are requested to do so by an eligible person.

(3) Each of the following is an eligible person--

(a) the relevant person;

(b) the relevant person's representative;

Request for review

103 (1) An eligible person may, at any time, request the supervisory body to carry out a review of the standard authorisation in accordance with this Part.

(2) The managing authority of the relevant hospital or care home must make such a request if one or more of the qualifying requirements appear to them to be reviewable.

Grounds for review

104 (1) Paragraphs 105 to 107 set out the grounds on which the qualifying requirements are reviewable.

(2) A qualifying requirement is not reviewable on any other ground.

Non-qualification ground

105 (1) Any of the following qualifying requirements is reviewable on the ground that the relevant person does not meet the requirement--

(a) the age requirement;

(b) the mental health requirement;

(d) the best interests requirement;

(e) the no refusals requirement.

(2) The eligibility requirement is reviewable on the ground that the relevant person is ineligible by virtue of paragraph 5 of Schedule 1A.

(3) The ground in sub-paragraph (1) and the ground in sub-paragraph (2) are referred to as the non-qualification ground.

Change of reason ground

106 (1) Any of the following qualifying requirements is reviewable on the ground set out in sub-paragraph (2)--

(a) the mental health requirement;

(b) the mental capacity requirement;

(d) the eligibility requirement;

(e) the no refusals requirement.

(2) The ground is that the reason why the relevant person meets the requirement is not the reason stated in the standard authorisation.

(3) This ground is referred to as the change of reason ground.

Variation of conditions ground

107 (1) The best interests requirement is reviewable on the ground that--

(a) there has been a change in the relevant person's case, and

(b) because of that change, it would be appropriate to vary the conditions to which the standard authorisation is subject.

(2) This ground is referred to as the variation of conditions ground.

(3) A reference to varying the conditions to which the standard authorisation is subject is a reference to--

(a) amendment of an existing condition,

(b) omission of an existing condition, or

Notice that review to be carried out

108 (1) If the supervisory body are to carry out a review of the standard authorisation, they must give notice of the review to the following persons--

(a) the relevant person;

(b) the relevant person's representative;

(2) The supervisory body must give the notice--

(a) before they begin the review, or

(b) if that is not practicable, as soon as practicable after they have begun it.

(3) This paragraph does not require the supervisory body to give notice to any person who has requested the review.

Starting a review

109 To start a review of the standard authorisation, the supervisory body must decide which, if any, of the qualifying requirements appear to be reviewable.

No reviewable qualifying requirements

110 (1) This paragraph applies if no qualifying requirements appear to be reviewable.

(2) This Part does not require the supervisory body to take any action in respect of the standard authorisation.

One or more reviewable qualifying requirements

111 (1) This paragraph applies if one or more qualifying requirements appear to be reviewable.

(2) The supervisory body must secure that a separate review assessment is carried out in relation to each qualifying requirement which appears to be reviewable.

(3) But sub-paragraph (2) does not require the supervisory body to secure that a best interests review assessment is carried out in a case where the best interests requirement appears to the supervisory body to be non-assessable.

(4) The best interests requirement is non-assessable if--

(a) the requirement is reviewable only on the variation of conditions ground, and

(b) the change in the relevant person's case is not significant.

(5) In making any decision whether the change in the relevant person's case is significant, regard must be had to--

(a) the nature of the change, and

(b) the period that the change is likely to last for.

Review assessments

112 (1) A review assessment is an assessment of whether the relevant person meets a qualifying requirement.

(2) In relation to a review assessment--

(a) a negative conclusion is a conclusion that the relevant person does not meet the qualifying requirement to which the assessment relates;

(b) a positive conclusion is a conclusion that the relevant person meets the qualifying requirement to which the assessment relates.

(3) An age review assessment is a review assessment carried out in relation to the age requirement.

(4) A mental health review assessment is a review assessment carried out in relation to the mental health requirement.

(5) A mental capacity review assessment is a review assessment carried out in relation to the mental capacity requirement.

(6) A best interests review assessment is a review assessment carried out in relation to the best interests requirement.

(7) An eligibility review assessment is a review assessment carried out in relation to the eligibility requirement.

(8) A no refusals review assessment is a review assessment carried out in relation to the no refusals requirement.

113 (1) In carrying out a review assessment, the assessor must comply with any duties which would be imposed upon him under Part 4 if the assessment were being carried out in connection with a request for a standard authorisation.

(2) But in the case of a best interests review assessment, paragraphs 43 and 44 do not apply.

(3) Instead of what is required by paragraph 43, the best interests review assessment must include recommendations about whether -- and, if so, how -- it would be appropriate to vary the conditions to which the standard authorisation is subject.

Best interests requirement reviewable but non-assessable

114 (1) This paragraph applies in a case where--

(a) the best interests requirement appears to be reviewable, but

(b) in accordance with paragraph 111(3), the supervisory body are not required to secure that a best interests review assessment is carried out.

(2) The supervisory body may vary the conditions to which the standard authorisation is subject in such ways (if any) as the supervisory body think are appropriate in the circumstances.

Best interests review assessment positive

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