Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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(b) a person accordingly ceases to hold an appointment as a section 39C IMCA.

(2) Where a function under a relevant provision has been exercised by, or towards, the section 39C IMCA, there is no requirement for that function to be exercised again by, or towards, the relevant person's representative.

Section 39A IMCA: restriction of functions

161 (1) This paragraph applies if--

(a) there is a section 39A IMCA, and

(b) a person is appointed under Part 10 to be the relevant person's representative (whether or not that person, or any person subsequently appointed, is currently the relevant person's representative).

(2) The duties imposed on, and the powers exercisable by, the section 39A IMCA do not apply.

(3) The duties imposed on, and the powers exercisable by, any other person do not apply, so far as they fall to be performed or exercised towards the section 39A IMCA.

(4) But sub-paragraph (2) does not apply to any power of challenge exercisable by the section 39A IMCA.

(5) And sub-paragraph (3) does not apply to any duty or power of any other person so far as it relates to any power of challenge exercisable by the section 39A IMCA.

(6) Before exercising any power of challenge, the section 39A IMCA must take the views of the relevant person's representative into account.

(7) A power of challenge is a power to make an application to the court to exercise its jurisdiction under section 21A in connection with the giving of the standard authorisation.

Part 12 Miscellaneous

Monitoring of operation of Schedule

162 (1) Regulations may make provision for, and in connection with, requiring one or more prescribed bodies to monitor, and report on, the operation of this Schedule in relation to England.

(2) The regulations may, in particular, give a prescribed body authority to do one or more of the following things--

(a) to visit hospitals and care homes;

(b) to visit and interview persons accommodated in hospitals and care homes;

(c) to require the production of, and to inspect, records relating to the care or treatment of persons.

(3) "Prescribed" means prescribed in regulations under this paragraph.

163 (1) Regulations may make provision for, and in connection with, enabling the National Assembly for Wales to monitor, and report on, the operation of this Schedule in relation to Wales.

(2) The National Assembly may direct one or more persons or bodies to carry out the Assembly's functions under regulations under this paragraph.

Disclosure of information

164 (1) Regulations may require either or both of the following to disclose prescribed information to prescribed bodies--

(a) supervisory bodies;

(b) managing authorities of hospitals or care homes.

(2) "Prescribed" means prescribed in regulations under this paragraph.

(3) Regulations under this paragraph may only prescribe information relating to matters with which this Schedule is concerned.

Directions by National Assembly in relation to supervisory functions

165 (1) The National Assembly for Wales may direct a Local Health Board to exercise in relation to its area any supervisory functions which are specified in the direction.

(2) Directions under this paragraph must not preclude the National Assembly from exercising the functions specified in the directions.

(3) In this paragraph "supervisory functions" means functions which the National Assembly have as supervisory body, so far as they are exercisable in relation to hospitals (whether NHS or independent hospitals, and whether in Wales or England).

166 (1) This paragraph applies where, under paragraph 165, a Local Health Board ("the specified LHB") is directed to exercise supervisory functions ("delegated functions").

(2) The National Assembly for Wales may give directions to the specified LHB about the Board's exercise of delegated functions.

(3) The National Assembly may give directions for any delegated functions to be exercised, on behalf of the specified LHB, by a committee, sub-committee or officer of that Board.

(4) The National Assembly may give directions providing for any delegated functions to be exercised by the specified LHB jointly with one or more other Local Health Boards.

(5) Where, under sub-paragraph (4), delegated functions are exercisable jointly, the National Assembly may give directions providing for the functions to be exercised, on behalf of the Local Health Boards in question, by a joint committee or joint sub-committee.

167 (1) Directions under paragraph 165 must be given in regulations.

(2) Directions under paragraph 166 may be given--

(a) in regulations, or

(b) by instrument in writing.

168 The power under paragraph 165 or paragraph 166 to give directions includes power to vary or revoke directions given under that paragraph.

Notices

169 Any notice under this Schedule must be in writing.

Regulations

170 (1) This paragraph applies to all regulations under this Schedule, except regulations under paragraph 162, 163, 167 or 183.

(2) It is for the Secretary of State to make such regulations in relation to authorisations under this Schedule which relate to hospitals and care homes situated in England.

(3) It is for the National Assembly for Wales to make such regulations in relation to authorisations under this Schedule which relate to hospitals and care homes situated in Wales.

171 It is for the Secretary of State to make regulations under paragraph 162.

172 It is for the National Assembly for Wales to make regulations under paragraph 163 or 167.

173 (1) This paragraph applies to regulations under paragraph 183.

(2) It is for the Secretary of State to make such regulations in relation to cases where a question as to the ordinary residence of a person is to be determined by the Secretary of State.

(3) It is for the National Assembly for Wales to make such regulations in relation to cases where a question as to the ordinary residence of a person is to be determined by the National Assembly.

Part 13 Interpretation

Introduction

174 This Part applies for the purposes of this Schedule.

Hospitals and their managing authorities

175 (1) "Hospital" means--

(a) an NHS hospital, or

(b) an independent hospital.

(2) "NHS hospital" means--

(a) a health service hospital as defined by section 275 of the National Health Service Act 2006 or section 206 of the National Health Service (Wales) Act 2006, or

(b) a hospital as defined by section 206 of the National Health Service (Wales) Act 2006 vested in a Local Health Board.

(3) "Independent hospital" means a hospital as defined by section 2 of the Care Standards Act 2000 which is not an NHS hospital.

176 (1) "Managing authority", in relation to an NHS hospital, means--

(a) if the hospital--

(i) is vested in the appropriate national authority for the purposes of its functions under the National Health Service Act 2006 or of the National Health Service (Wales) Act 2006, or

(ii) consists of any accommodation provided by a local authority and used as a hospital by or on behalf of the appropriate national authority under either of those Acts,

the Primary Care Trust, Strategic Health Authority, Local Health Board or Special Health Authority responsible for the administration of the hospital;

(b) if the hospital is vested in a Primary Care Trust, National Health Service trust or NHS foundation trust, that trust;

(c) if the hospital is vested in a Local Health Board, that Board.

(2) For this purpose the appropriate national authority is--

(a) in relation to England: the Secretary of State;

(b) in relation to Wales: the National Assembly for Wales;

(c) in relation to England and Wales: the Secretary of State and the National Assembly acting jointly.

177 "Managing authority", in relation to an independent hospital, means the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the hospital.

Care homes and their managing authorities

178 "Care home" has the meaning given by section 3 of the Care Standards Act 2000.

179 "Managing authority", in relation to a care home, means the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the care home.

Supervisory bodies: hospitals

180 (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant hospital is situated in England.

(2) If a Primary Care Trust commissions the relevant care or treatment, that Trust is the supervisory body.

(3) If the National Assembly for Wales or a Local Health Board commission the relevant care or treatment, the National Assembly are the supervisory body.

(4) In any other case, the supervisory body are the Primary Care Trust for the area in which the relevant hospital is situated.

(5) If a hospital is situated in the areas of two (or more) Primary Care Trusts, it is to be regarded for the purposes of sub-paragraph (4) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.

181 (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant hospital is situated in Wales.

(2) The National Assembly for Wales are the supervisory body.

(3) But if a Primary Care Trust commissions the relevant care or treatment, that Trust is the supervisory body.

Supervisory bodies: care homes

182 (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant care home is situated in England or in Wales.

(2) The supervisory body are the local authority for the area in which the relevant person is ordinarily resident.

(3) But if the relevant person is not ordinarily resident in the area of a local authority, the supervisory body are the local authority for the area in which the care home is situated.

(4) In relation to England "local authority" means--

(a) the council of a county;

(b) the council of a district for which there is no county council;

(c) the council of a London borough;

(d) the Common Council of the City of London;

(e) the Council of the Isles of Scilly.

(5) In relation to Wales "local authority" means the council of a county or county borough.

(6) If a care home is situated in the areas of two (or more) local authorities, it is to be regarded for the purposes of sub-paragraph (3) as situated in whichever of the areas the greater (or greatest) part of the care home is situated.

183 (1) Subsections (5) and (6) of section 24 of the National Assistance Act 1948 (deemed place of ordinary residence) apply to any determination of where a person is ordinarily resident for the purposes of paragraph 182 as those subsections apply to such a determination for the purposes specified in those subsections.

(2) In the application of section 24(6) of the 1948 Act by virtue of subsection (1), section 24(6) is to be read as if it referred to a hospital vested in a Local Health Board as well as to hospitals vested in the Secretary of State and the other bodies mentioned in section 24(6).

(3) Any question arising as to the ordinary residence of a person is to be determined by the Secretary of State or by the National Assembly for Wales.

(4) The Secretary of State and the National Assembly must make and publish arrangements for determining which cases are to be dealt with by the Secretary of State and which are to be dealt with by the National Assembly.

(5) Those arrangements may include provision for the Secretary of State and the National Assembly to agree, in relation to any question that has arisen, which of them is to deal with the case.

(6) Regulations may make provision about arrangements that are to have effect before, upon, or after the determination of any question as to the ordinary residence of a person.

(7) The regulations may, in particular, authorise or require a local authority to do any or all of the following things--

(a) to act as supervisory body even though it may wish to dispute that it is the supervisory body;

(b) to become the supervisory body in place of another local authority;

(c) to recover from another local authority expenditure incurred in exercising functions as the supervisory body.

Same body managing authority and supervisory body

184 (1) This paragraph applies if, in connection with a particular person's detention as a resident in a hospital or care home, the same body are both--

(a) the managing authority of the relevant hospital or care home, and

(b) the supervisory body.

(2) The fact that a single body are acting in both capacities does not prevent the body from carrying out functions under this Schedule in each capacity.

(3) But, in such a case, this Schedule has effect subject to any modifications contained in regulations that may be made for this purpose.

Interested persons

185 Each of the following is an interested person--

(a) the relevant person's spouse or civil partner;

(b) where the relevant person and another person of the opposite sex are not married to each other but are living together as husband and wife: the other person;

(c) where the relevant person and another person of the same sex are not civil partners of each other but are living together as if they were civil partners: the other person;

(d) the relevant person's children and step-children;

(e) the relevant person's parents and step-parents;

(f) the relevant person's brothers and sisters, half-brothers and half-sisters, and stepbrothers and stepsisters;

(g) the relevant person's grandparents;

(h) a deputy appointed for the relevant person by the court;

(i) a donee of a lasting power of attorney granted by the relevant person.

186 (1) An interested person consulted by the best interests assessor is any person whose name is stated in the relevant best interests assessment in accordance with paragraph 40 (interested persons whom the assessor consulted in carrying out the assessment).

(2) The relevant best interests assessment is the most recent best interests assessment carried out in connection with the standard authorisation in question (whether the assessment was carried out under Part 4 or Part 8).

187 Where this Schedule imposes on a person a duty towards an interested person, the duty does not apply if the person on whom the duty is imposed--

(a) is not aware of the interested person's identity or of a way of contacting him, and

(b) cannot reasonably ascertain it.

188 The following table contains an index of provisions defining or otherwise explaining expressions used in this Schedule--

age assessment	paragraph 34
age requirement	paragraph 13
age review assessment	paragraph 112(3)
appointment regulations	paragraph 138
assessment under this Schedule	paragraph 127
assessor (except in Part 8)	paragraph 33
assessor (in Part 8)	paragraphs 33 and 128
authorisation under this Schedule	paragraph 10
best interests (determination of)	section 4
best interests assessment	paragraph 38
best interests requirement	paragraph 16
best interests review assessment	paragraph 112(6)
care home	paragraph 178
change of reason ground	paragraph 106
complete (in relation to a review of a standard authorisation)	paragraph 118
deprivation of a person's liberty	section 64(5) and (6)
deputy	section 16(2)(b)
detained resident	paragraph 6
disposed of (in relation to a request for a standard authorisation)	paragraph 66
eligibility assessment	paragraph 46
eligibility requirement	paragraph 17
eligibility review assessment	paragraph 112(7)
eligible person (in relation to paragraphs 68 to 73)	paragraph 68
eligible person (in relation to Part 8)	paragraph 102(3)
expiry (in relation to an existing authorisation)	paragraph 125(b)
existing authorisation (in Part 8)	paragraph 125(a)
hospital	paragraph 175
IMCA	paragraph 158
in force (in relation to a standard authorisation)	paragraphs 63 and 64
in force (in relation to an urgent authorisation)	paragraphs 88 and 89
ineligible (in relation to the eligibility requirement)	Schedule 1A
interested person	paragraph 185
interested person consulted by the best interests assessor	paragraph 186
lack of capacity	section 2
lasting power of attorney	section 9
managing authority (in relation to a care home)	paragraph 179
managing authority (in relation to a hospital)	paragraph 176 or 177
maximum authorisation period	paragraph 42
mental capacity assessment	paragraph 37
mental capacity requirement	paragraph 15
mental capacity review assessment	paragraph 112(5)
mental health assessment	paragraph 35
mental health requirement	paragraph 14
mental health review assessment	paragraph 112(4)
negative conclusion	paragraph 112(2)(a)
new supervisory body	paragraph 99(b)
no refusals assessment	paragraph 48
no refusals requirement	paragraph 18
no refusals review assessment	paragraph 112(8)
non-qualification ground	paragraph 105
old supervisory body	paragraph 99(a)
positive conclusion	paragraph 112(2)(b)
purpose of a standard authorisation	paragraph 11(1)
purpose of an urgent authorisation	paragraph 11(2)
qualifying requirements	paragraph 12
refusal (for the purposes of the no refusals requirement)	paragraphs 19 and 20	paragraph 67
urgent authorisation	paragraph 9
variation of conditions ground	paragraph 107 " .

Section 50

SCHEDULE 8 Mental Capacity Act 2005: new Schedule 1A

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

" SCHEDULE 1A Persons ineligible to be deprived of liberty by this Act

Part 1 Ineligible persons

Application

1 This Schedule applies for the purposes of--

(a) section 16A, and

(b) paragraph 17 of Schedule A1.

Determining ineligibility

2 A person ("P") is ineligible to be deprived of liberty by this Act ("ineligible") if--

(a) P falls within one of the cases set out in the second column of the following table, and

(b) the corresponding entry in the third column of the table --or the provision, or one of the provisions, referred to in that entry -- provides that he is ineligible.

	Status of P	Determination of ineligibility
Case A	P is-- (a) subject to the hospital treatment regime, and (b) detained in a hospital under that regime.	P is ineligible.
Case B	P is-- (a) subject to the hospital treatment regime, but (b) not detained in a hospital under that regime.	See paragraphs 3 and 4.
Case C	P is subject to the community treatment regime.	See paragraphs 3 and 4.
Case D	P is subject to the guardianship regime.	See paragraphs 3 and 5.
Case E	P is-- (a) within the scope of the Mental Health Act, but (b) not subject to any of the mental health regimes.	See paragraph 5.

Authorised course of action not in accordance with regime

3 (1) This paragraph applies in cases B, C and D in the table in paragraph 2.

(2) P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes.

(3) That includes any requirement as to where P is, or is not, to reside.

(4) The relevant regime is the mental health regime to which P is subject.

Treatment for mental disorder in a hospital

4 (1) This paragraph applies in cases B and C in the table in paragraph 2.

(2) P is ineligible if the relevant care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital.

P objects to being a mental health patient etc

5 (1) This paragraph applies in cases D and E in the table in paragraph 2.

(2) P is ineligible if the following conditions are met.

(3) The first condition is that the relevant instrument authorises P to be a mental health patient.

(4) The second condition is that P objects--

(a) to being a mental health patient, or

(b) to being given some or all of the mental health treatment.

(5) The third condition is that a donee or deputy has not made a valid decision to consent to each matter to which P objects.

(6) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following--

(a) P's behaviour;

(b) P's wishes and feelings;

(c) P's views, beliefs and values.

(7) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them.

Part 2 Interpretation

Application

6 This Part applies for the purposes of this Schedule.

Mental health regimes

7 The mental health regimes are--

(a) the hospital treatment regime,

(b) the community treatment regime, and

(c) the guardianship regime.

Hospital treatment regime

8 (1) P is subject to the hospital treatment regime if he is subject to--

(a) a hospital treatment obligation under the relevant enactment, or

(b) an obligation under another England and Wales enactment which has the same effect as a hospital treatment obligation.

(2) But where P is subject to any such obligation, he is to be regarded as not subject to the hospital treatment regime during any period when he is subject to the community treatment regime.

(3) A hospital treatment obligation is an application, order or direction of a kind listed in the first column of the following table.

(4) In relation to a hospital treatment obligation, the relevant enactment is the enactment in the Mental Health Act which is referred to in the corresponding entry in the second column of the following table.

Hospital treatment obligation	Relevant enactment
Application for admission for assessment	Section 2
Application for admission for assessment	Section 4
Application for admission for treatment	Section 3
Order for remand to hospital	Section 35
Order for remand to hospital	Section 36
Hospital order	Section 37
Interim hospital order	Section 38
Order for detention in hospital	Section 44
Hospital direction	Section 45A
Transfer direction	Section 47
Transfer direction	Section 48
Hospital order	Section 51

Community treatment regime

9 P is subject to the community treatment regime if he is subject to--

(a) a community treatment order under section 17A of the Mental Health Act, or

(b) an obligation under another England and Wales enactment which has the same effect as a community treatment order.

Guardianship regime

10 P is subject to the guardianship regime if he is subject to--

(a) a guardianship application under section 7 of the Mental Health Act,

(b) a guardianship order under section 37 of the Mental Health Act, or

(c) an obligation under another England and Wales enactment which has the same effect as a guardianship application or guardianship order.

England and Wales enactments

11 (1) An England and Wales enactment is an enactment which extends to England and Wales (whether or not it also extends elsewhere).

(2) It does not matter if the enactment is in the Mental Health Act or not.

P within scope of Mental Health Act

12 (1) P is within the scope of the Mental Health Act if--

(a) an application in respect of P could be made under section 2 or 3 of the Mental Health Act, and

(b) P could be detained in a hospital in pursuance of such an application, were one made.

(2) The following provisions of this paragraph apply when determining whether an application in respect of P could be made under section 2 or 3 of the Mental Health Act.

(3) If the grounds in section 2(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 2(3) of that Act have been given.

(4) If the grounds in section 3(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 3(3) of that Act have been given.

(5) In determining whether the ground in section 3(2)(c) of the Mental Health Act is met in P's case, it is to be assumed that the treatment referred to in section 3(2)(c) cannot be provided under this Act.

Authorised course of action, relevant care or treatment & relevant instrument

13 In a case where this Schedule applies for the purposes of section 16A--

• "authorised course of action" means any course of action amounting to deprivation of liberty which the order under section 16(2)(a) authorises;

• "relevant care or treatment" means any care or treatment which--

  (a)

  comprises, or forms part of, the authorised course of action, or

  (b)

  is to be given in connection with the authorised course of action;

• "relevant instrument" means the order under section 16(2)(a).

14 In a case where this Schedule applies for the purposes of paragraph 17 of Schedule A1--

• "authorised course of action" means the accommodation of the relevant person in the relevant hospital or care home for the purpose of being given the relevant care or treatment;

• "relevant care or treatment" has the same meaning as in Schedule A1;

• "relevant instrument" means the standard authorisation under Schedule A1.

15 (1) This paragraph applies where the question whether a person is ineligible to be deprived of liberty by this Act is relevant to either of these decisions--

(a) whether or not to include particular provision ("the proposed provision") in an order under section 16(2)(a);

(b) whether or not to give a standard authorisation under Schedule A1.

(2) A reference in this Schedule to the authorised course of action or the relevant care or treatment is to be read as a reference to that thing as it would be if--

(a) the proposed provision were included in the order, or

(b) the standard authorisation were given.

(3) A reference in this Schedule to the relevant instrument is to be read as follows--

(a) where the relevant instrument is an order under section 16(2)(a): as a reference to the order as it would be if the proposed provision were included in it;

(b) where the relevant instrument is a standard authorisation: as a reference to the standard authorisation as it would be if it were given.

Expressions used in paragraph 5

16 (1) These expressions have the meanings given--

• "donee" means a donee of a lasting power of attorney granted by P;

• "mental health patient" means a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder;

• "mental health treatment" means the medical treatment for mental disorder referred to in the definition of "mental health patient".

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