Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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"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".

(2) A decision of a donee or deputy is valid if it is made--

(a) within the scope of his authority as donee or deputy, and

(b) in accordance with Part 1 of this Act.

Expressions with same meaning as in Mental Health Act

17 (1) "Hospital" has the same meaning as in Part 2 of the Mental Health Act.

(2) "Medical treatment" has the same meaning as in the Mental Health Act.

(3) "Mental disorder" has the same meaning as in Schedule A1 (see paragraph 14). " .

Section 50

SCHEDULE 9 Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act 2005

Part 1 Other amendments to Mental Capacity Act 2005

Introduction

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

New section 21A

2 After section 21 insert--

" Powers of the court in relation to Schedule A1

21A Powers of court in relation to Schedule A1

(1) This section applies if either of the following has been given under Schedule A1--

(a) a standard authorisation;

(b) an urgent authorisation.

(2) Where a standard authorisation has been given, the court may determine any question relating to any of the following matters--

(a) whether the relevant person meets one or more of the qualifying requirements;

(b) the period during which the standard authorisation is to be in force;

(d) the conditions subject to which the standard authorisation is given.

(3) If the court determines any question under subsection (2), the court may make an order--

(a) varying or terminating the standard authorisation, or

(b) directing the supervisory body to vary or terminate the standard authorisation.

(4) Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters--

(a) whether the urgent authorisation should have been given;

(b) the period during which the urgent authorisation is to be in force;

(5) Where the court determines any question under subsection (4), the court may make an order--

(a) varying or terminating the urgent authorisation, or

(b) directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.

(6) Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

(7) An order under subsection (6) may, in particular, exclude a person from liability. "

Section 35: Appointment of independent mental capacity advocates

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

Section 38: IMCAs and provision of accommodation by NHS body

4 (1) Section 38 is amended as follows.

(2) After subsection (2) insert--

" (2A) And this section does not apply if--

(a) an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the NHS body) to represent P, and

(b) the hospital or care home in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section. "

(3) After subsection (9) insert--

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

Section 39: IMCAs and provision of accommodation by local authority

5 (1) Section 39 is amended as follows.

(2) After subsection (3) insert--

" (3A) And this section does not apply if--

(a) an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the local authority) to represent P, and

(b) the place in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section. "

(3) After subsection (6) insert--

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

New section 39A

6 After section 39 insert--

" 39A Person becomes subject to Schedule A1

(1) This section applies if--

(a) a person ("P") becomes subject to Schedule A1, and

(b) the managing authority of the relevant hospital or care home are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.

(2) The managing authority must notify the supervisory body that this section applies.

(3) The supervisory body must instruct an independent mental capacity advocate to represent P.

(4) Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.

(5) This section is subject to paragraph 161 of Schedule A1.

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

39B Section 39A: supplementary provision

(1) This section applies for the purposes of section 39A.

(2) P becomes subject to Schedule A1 in any of the following cases.

(3) The first case is where an urgent authorisation is given in relation to P under paragraph 76(2) of Schedule A1 (urgent authorisation given before request made for standard authorisation).

(4) The second case is where the following conditions are met.

(5) The first condition is that a request is made under Schedule A1 for a standard authorisation to be given in relation to P ("the requested authorisation").

(6) The second condition is that no urgent authorisation was given under paragraph 76(2) of Schedule A1 before that request was made.

(7) The third condition is that the requested authorisation will not be in force on or before, or immediately after, the expiry of an existing standard authorisation.

(8) The expiry of a standard authorisation is the date when the authorisation is expected to cease to be in force.

(9) The third case is where, under paragraph 69 of Schedule A1, the supervisory body select a person to carry out an assessment of whether or not the relevant person is a detained resident.

39C Person unrepresented whilst subject to Schedule A1

(1) This section applies if--

(a) an authorisation under Schedule A1 is in force in relation to a person ("P"),

(b) the appointment of a person as P's representative ends in accordance with regulations made under Part 10 of Schedule A1, and

(c) the managing authority of the relevant hospital or care home are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.

(2) The managing authority must notify the supervisory body that this section applies.

(3) The supervisory body must instruct an independent mental capacity advocate to represent P.

(4) Paragraph 159 of Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.

(5) The appointment of an independent mental capacity advocate under this section ends when a new appointment of a person as P's representative is made in accordance with Part 10 of Schedule A1.

39D Person subject to Schedule A1 without paid representative

(1) This section applies if--

(a) an authorisation under Schedule A1 is in force in relation to a person ("P"),

(b) P has a representative ("R") appointed under Part 10 of Schedule A1, and

(2) The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases.

(3) The first case is where P makes a request to the supervisory body to instruct an advocate.

(4) The second case is where R makes a request to the supervisory body to instruct an advocate.

(5) The third case is where the supervisory body have reason to believe one or more of the following--

(a) that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;

(b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(6) The duty in subsection (2) is subject to section 39E.

(7) If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters--

(a) the effect of the authorisation;

(b) the purpose of the authorisation;

(d) any conditions to which the authorisation is subject;

(e) the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, decided that P met the qualifying requirement in question;

(f) the relevant rights;

(g) how to exercise the relevant rights.

(8) The advocate is, in particular, to take such steps as are practicable to help P or R--

(a) to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or

(b) to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.

(9) If the advocate helps P or R to exercise the right of review--

(a) the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable;

(b) the advocate may give information, or make submissions, to any assessor carrying out a review assessment.

(10) In this section--

"relevant rights" means--
(a)
the right to apply to court, and
(b)
the right of review;
"right to apply to court" means the right to make an application to the court to exercise its jurisdiction under section 21A;
"right of review" means the right under Part 8 of Schedule A1 to request a review.

39E Limitation on duty to instruct advocate under section 39D

(1) This section applies if an advocate is already representing P in accordance with an instruction under section 39D.

(2) Section 39D(2) does not require another advocate to be instructed, unless the following conditions are met.

(3) The first condition is that the existing advocate was instructed--

(a) because of a request by R, or

(b) because the supervisory body had reason to believe one or more of the things in section 39D(5).

(4) The second condition is that the other advocate would be instructed because of a request by P. "

Section 40: Exceptions to duty to appoint IMCAs

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

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

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

(4) After subsection (1) insert--

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

Section 42: Codes of practice

8 (1) Section 42 is amended as follows.

(2) In subsection (1), after paragraph (f) insert--

" (fa) for the guidance of persons exercising functions under Schedule A1,

(fb) for the guidance of representatives appointed under Part 10 of Schedule A1, " .

(3) In subsection (4), after paragraph (d) insert--

" (da) in the exercise of functions under Schedule A1,

(db) as a representative appointed under Part 10 of Schedule A1, " .

Section 50: Application to the Court of Protection

9 In section 50, after subsection (1) insert--

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

Section 64: Interpretation

10 (1) Section 64 is amended as follows.

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

" "authorisation under Schedule A1" means either--

(a) a standard authorisation under that Schedule, or

(b) an urgent authorisation under that Schedule. "

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

(4) After subsection (4) insert--

" (5) In this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention.

(6) For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not. "

Section 65: Rules, regulations and orders

11 (1) Section 65 is amended as follows.

(2) After subsection (4) insert--

" (4A) Subsection (2) does not apply to a statutory instrument containing regulations made by the Secretary of State under Schedule A1.

(4B) If such a statutory instrument contains regulations under paragraph 42(2)(b), 129, 162 or 164 of Schedule A1 (whether or not it also contains other regulations), the instrument may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(4C) Subject to that, such a statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament. "

Part 2 Amendments to other Acts

National Assistance Act 1948 (c. 29)

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

(2) After subsection (1) insert--

" (1A) But this section does not apply to a person ("P") in either of the following cases.

(1B) The first case is where an order of the Court of Protection authorises the managing authority of a hospital or care home (within the meaning of Schedule A1 to the Mental Capacity Act 2005) to provide P with proper care and attention.

(1C) The second case is where--

(a) an authorisation under Schedule A1 to the Mental Capacity Act 2005 is in force, or

(b) the managing authority of a hospital or care home are under a duty under paragraph 24 of that Schedule to request a standard authorisation, and

P is, or would be, the relevant person in relation to the authorisation. "

(3) This paragraph does not extend to Scotland.

Local Authority Social Services Act 1970 (c. 42)

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

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

" Section 39A

Instructing independent mental capacity advocate when giving an urgent authorisation, or making a request for a standard authorisation, under Schedule A1 to the Act. "

" Section 39C

Instructing independent mental capacity advocate when no representative for relevant person under Part 10 of Schedule A1 to the Act. "

" Section 39D

Instructing independent mental capacity advocate when representative for relevant person under Part 10 of Schedule A1 to the Act is not being paid. "

" Schedule A1

Any functions. "

Section 53

SCHEDULE 10 Transitional provisions and savings

Interpretation

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

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

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

Authority to detain etc

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

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

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

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

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

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

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

(b) any consideration of his case by a Mental Health Review Tribunal, and

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

(4) The provisions are--

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

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

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

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

(f) section 7 (definition of "medical treatment"), and

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

Consent to treatment

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

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

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

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

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

Reclassification of patients

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

Supervised community treatment

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

Nearest relative

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

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

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

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

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

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

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

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

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

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

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

Independent mental health advocates

8 (1) Section 30--

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

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

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

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

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

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

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

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

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

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

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

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

(b) the proposal has not been withdrawn, and

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

(a) the proposal is withdrawn, or

(b) the treatment is completed or discontinued.

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

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

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

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