Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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(b) in paragraph (c), for ""by the responsible medical officer"" substitute ""by the responsible clinician"".

12 Amendments to Part 4 of 1983 Act

(1) Part 4 of the 1983 Act (consent to treatment) is amended as follows.

(2) In section 57 (requirements as to certification for treatment requiring consent and a second opinion)--

(a) in subsection (2)(a), for "responsible medical officer" substitute "responsible clinician (if there is one) or the person in charge of the treatment in question", and

(b) in subsection (3), for the words from ", and of those persons" to the end substitute " but, of those persons--

(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and

(b) neither shall be the responsible clinician (if there is one) or the person in charge of the treatment in question. "

(3) In section 58 (requirements as to certification for treatment requiring consent or a second opinion)--

(a) in subsection (3)--

(i) in paragraph (a), for "responsible medical officer" substitute "approved clinician in charge of it", and

(ii) in paragraph (b), for "responsible medical officer" substitute "responsible clinician or the approved clinician in charge of the treatment in question", and

(b) in subsection (4), for the words from ", and of those persons" to the end substitute " but, of those persons--

(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and

(b) neither shall be the responsible clinician or the approved clinician in charge of the treatment in question. "

(4) In section 61 (review of treatment)--

(a) in subsection (1)--

(i) for "by the responsible medical officer" substitute "by the approved clinician in charge of the treatment", and

(ii) in paragraph (a), for "responsible medical officer" substitute "responsible clinician",

(b) in subsection (2)(b), for "responsible medical officer" substitute "responsible clinician",

(d) after that subsection insert--

" (3A) The notice under subsection (3) above shall be given to the approved clinician in charge of the treatment. "

(5) In section 62(2) (exception to discontinuance of treatment), for "responsible medical officer" substitute "approved clinician in charge of the treatment".

(6) In section 63 (treatment not requiring consent), for "responsible medical officer" substitute "approved clinician in charge of the treatment".

(7) In section 64 (supplementary provisions for Part 4)--

(a) in subsection (1), for the words from ""the responsible" to "treatment" substitute ""the responsible clinician" means the approved clinician with overall responsibility for the case", and

(b) after that subsection insert--

" (1A) References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 57 above applies, be construed as references to the person in charge of the treatment. "

13 Amendments to Part 5 of 1983 Act

(1) Part 5 of the 1983 Act (Mental Health Review Tribunals) is amended as follows.

(2) In the following provisions, after "registered medical practitioner" insert "or approved clinician"--

(a) section 67(2) (power to visit and examine patient for the purposes of a tribunal reference), and

(b) section 76(1) (power to visit and examine patient for the purposes of a tribunal application).

(3) In section 79 (interpretation of Part 5), in subsection (6), for ", and "the responsible medical officer" means the responsible medical officer," substitute ", and "the responsible clinician" means the responsible clinician,".

14 Amendments to other provisions of 1983 Act

(1) The 1983 Act is amended as follows.

(2) In section 118 (code of practice), in subsection (1)(a), after "registered medical practitioners" insert ", approved clinicians".

(3) In the following provisions, after "registered medical practitioner" insert "or approved clinician"--

(a) section 120(4)(a) (right of person authorised by Secretary of State etc to visit patients), and

(b) section 121(5)(a) (right of person authorised by Mental Health Act Commission to visit patients).

(4) In section 134 (correspondence of patients), in subsection (1), for "registered medical practitioner in charge of the treatment of the patient" substitute "approved clinician with overall responsibility for the patient's case".

(5) In section 145 (general interpretation), in subsection (1), insert the following definition at the appropriate place--

" "approved clinician" means a person approved by the Secretary of State (in relation to England) or by the Welsh Ministers (in relation to Wales) to act as an approved clinician for the purposes of this Act; " .

15 Amendments to other Acts

(1) In section 116B(5) of the Army Act 1955 (3 & 4 Eliz. 2 c. 18) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)--

(a) for "the responsible medical officer" substitute "the responsible clinician", and

(b) for the words from "In this subsection" to the end substitute--

" In this subsection "responsible clinician" means the responsible clinician within the meaning of Part 3 of the 1983 Act. "

(2) In section 116B(5) of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)--

(a) for "the responsible medical officer" substitute "the responsible clinician", and

(b) for the words from "In this subsection" to the end substitute--

" In this subsection "responsible clinician" means the responsible clinician within the meaning of Part 3 of the 1983 Act. "

(3) In section 63B(5) of the Naval Discipline Act 1957 (c. 53) (provision for person subject to hospital order and restriction order to be remitted for trial, etc)--

(a) for "the responsible medical officer" substitute "the responsible clinician", and

(b) for the words from "In this subsection" to the end substitute--

" In this subsection "responsible clinician" means the responsible clinician within the meaning of Part 3 of the 1983 Act. "

(4) In section 5A(4) of the Criminal Procedure (Insanity) Act 1964 (c. 84) (provision for person subject to hospital order and restriction order to be remitted for trial, etc), for "the responsible medical officer" substitute "the responsible clinician".

(5) In section 171 of the Armed Forces Act 2006 (c. 52) (remission for trial)--

(a) in subsection (1), for "the responsible medical officer" substitute "the responsible clinician", and

(b) in subsection (4) for the definition of "the responsible medical officer" substitute--

" "the responsible clinician" means the responsible clinician within the meaning of Part 3 of the Mental Health Act 1983. "

(6) On the commencement of the repeal of an enactment mentioned in subsection (1), (2) or (3) by the Armed Forces Act 2006, that subsection shall also cease to have effect.

16 Certain registered medical practitioners to be treated as approved under section 12 of 1983 Act

In section 12 of the 1983 Act (general provisions as to medical recommendations), after subsection (2) insert--

" (2A) A registered medical practitioner who is an approved clinician shall be treated as also approved for the purposes of this section under subsection (2) above as having special experience as mentioned there. "

17 Regulations as to approvals in relation to England and Wales

After section 142 of the 1983 Act, insert--

" 142A Regulations as to approvals in relation to England and Wales

The Secretary of State jointly with the Welsh Ministers may by regulations make provision as to the circumstances in which--

(a) a practitioner approved for the purposes of section 12 above, or

(b) a person approved to act as an approved clinician for the purposes of this Act,

approved in relation to England is to be treated, by virtue of his approval, as approved in relation to Wales too, and vice versa. "

Approved mental health professionals

18 Approved mental health professionals

For section 114 of the 1983 Act (appointment of approved social workers) and the cross-heading immediately above it substitute--

" Approved mental health professionals

114 Approval by local social services authority

(1) A local social services authority may approve a person to act as an approved mental health professional for the purposes of this Act.

(2) But a local social services authority may not approve a registered medical practitioner to act as an approved mental health professional.

(3) Before approving a person under subsection (1) above, a local social services authority shall be satisfied that he has appropriate competence in dealing with persons who are suffering from mental disorder.

(4) The appropriate national authority may by regulations make provision in connection with the giving of approvals under subsection (1) above.

(5) The provision which may be made by regulations under subsection (4) above includes, in particular, provision as to--

(a) the period for which approvals under subsection (1) above have effect;

(b) the courses to be undertaken by persons before such approvals are to be given and during the period for which such approvals have effect;

(d) the factors to be taken into account in determining whether persons have appropriate competence as mentioned in subsection (3) above.

(6) Provision made by virtue of subsection (5)(b) above may relate to courses approved or provided by such person as may be specified in the regulations (as well as to courses approved under section 114A below).

(7) An approval by virtue of subsection (6) above may be in respect of a course in general or in respect of a course in relation to a particular person.

(8) The power to make regulations under subsection (4) above includes power to make different provision for different cases or areas.

(9) In this section "the appropriate national authority" means--

(a) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in England, the Secretary of State;

(b) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in Wales, the Welsh Ministers.

(10) In this Act "approved mental health professional" means--

(a) in relation to acting on behalf of a local social services authority whose area is in England, a person approved under subsection (1) above by any local social services authority whose area is in England, and

(b) in relation to acting on behalf of a local social services authority whose area is in Wales, a person approved under that subsection by any local social services authority whose area is in Wales. "

19 Approval of courses etc for approved mental health professionals

After section 114 of the 1983 Act insert--

" 114A Approval of courses etc for approved mental health professionals

(1) The relevant Council may, in accordance with rules made by it, approve courses for persons who are or wish to become approved mental health professionals.

(2) For that purpose--

(a) subsections (2) to (4)(a) and (7) of section 63 of the Care Standards Act 2000 apply as they apply to approvals given, rules made and courses approved under that section; and

(b) sections 66 and 71 of that Act apply accordingly.

(3) In subsection (1), "the relevant Council" means--

(a) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in England, the General Social Care Council;

(b) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in Wales, the Care Council for Wales.

(4) The functions of an approved mental health professional shall not be considered to be relevant social work for the purposes of Part 4 of the Care Standards Act 2000.

(5) The General Social Care Council and the Care Council for Wales may also carry out, or assist other persons in carrying out, research into matters relevant to training for approved mental health professionals. "

20 Amendment to section 62 of Care Standards Act 2000

In section 62 of the Care Standards Act 2000 (c. 14) (codes of practice), after subsection (1) insert--

" (1A) The codes may also lay down standards of conduct and practice expected of social workers when carrying out the functions of an approved mental health professional (as defined in section 114 of the Mental Health Act 1983). "

21 Approved mental health professionals: further amendments

Schedule 2 (which contains amendments in connection with section 18) has effect.

Conflicts of interest in professional roles

22 Conflicts of interest

(1) The 1983 Act is amended as follows.

(2) In section 11 (general provisions as to applications), after subsection (1) insert--

" (1A) No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below. "

(3) In section 12 (general provisions as to medical recommendations), in subsection (1), after "this Part of this Act" insert "or a guardianship application".

(4) In that section, for subsections (3) to (7) substitute--

" (3) No medical recommendation shall be given for the purposes of an application mentioned in subsection (1) above if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below. "

(5) After that section insert--

" 12A Conflicts of interest

(1) The appropriate national authority may make regulations as to the circumstances in which there would be a potential conflict of interest such that--

(a) an approved mental health professional shall not make an application mentioned in section 11(1) above;

(b) a registered medical practitioner shall not give a recommendation for the purposes of an application mentioned in section 12(1) above.

(2) Regulations under subsection (1) above may make--

(a) provision for the prohibitions in paragraphs (a) and (b) of that subsection to be subject to specified exceptions;

(b) different provision for different cases; and

(3) In subsection (1) above, "the appropriate national authority" means--

(a) in relation to applications in which admission is sought to a hospital in England or to guardianship applications in respect of which the area of the relevant local social services authority is in England, the Secretary of State;

(b) in relation to applications in which admission is sought to a hospital in Wales or to guardianship applications in respect of which the area of the relevant local social services authority is in Wales, the Welsh Ministers.

(4) References in this section to the relevant local social services authority, in relation to a guardianship application, are references to the local social services authority named in the application as guardian or (as the case may be) the local social services authority for the area in which the person so named resides. "

(6) In section 13 (duty to make applications for admission or guardianship), in subsection (5), after "section 11(4) above" insert "or of regulations under section 12A above".

Chapter 3 Safeguards for patients

Patient's nearest relative

23 Extension of power to appoint acting nearest relative

(1) Section 29 of the 1983 Act (appointment by court of acting nearest relative) is amended as follows.

(2) In subsection (1), for the words from "the applicant" to the end substitute "the person specified in the order".

(3) After subsection (1) insert--

" (1A) If the court decides to make an order on an application under subsection (1) above, the following rules have effect for the purposes of specifying a person in the order--

(a) if a person is nominated in the application to act as the patient's nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);

(b) otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient's nearest relative and is willing to do so. "

(4) In subsection (2)--

(a) after "on the application of--" insert--

" (za) the patient; " , and

(b) omit the words from "but in relation to" to the end.

(5) In subsection (3)--

(a) in paragraph (c) omit the word "or" at the end of the paragraph, and

(b) after paragraph (d) insert " ; or

(e) that the nearest relative of the patient is otherwise not a suitable person to act as such. "

(6) In subsection (5), for "(3)(a) or (b)" substitute "(3)(a), (b) or (e)".

24 Discharge and variation of orders appointing nearest relative

(1) Section 30 of the 1983 Act (discharge and variation of orders under section 29) is amended as follows.

(2) In subsection (1)--

(a) in paragraph (a), after "in any case, by" insert "the patient or", and

(b) in paragraph (b), for "or paragraph (b)" substitute ", (b) or (e)".

(3) After that subsection insert--

" (1A) But, in the case of an order made on the ground specified in paragraph (e) of section 29(3) above, an application may not be made under subsection (1)(b) above by the person who was the nearest relative of the patient when the order was made except with leave of the county court. "

(4) In subsection (2)--

(a) after "or on the application of" insert "the patient or of", and

(b) for the words from "for the first-mentioned person" to the end substitute "another person for the person having those functions".

(5) After that subsection insert--

" (2A) If the court decides to vary an order on an application under subsection (2) above, the following rules have effect for the purposes of substituting another person--

(b) otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient's nearest relative and is willing to do so. "

(6) In subsection (4), for the words from "An order under" to "period is specified" substitute "An order made on the ground specified in paragraph (c) or (d) of section 29(3) above shall, unless previously discharged under subsection (1) above, cease to have effect as follows".

(7) After subsection (4A) (inserted by Schedule 3 to this Act) insert--

" (4B) An order made on the ground specified in paragraph (a), (b) or (e) of section 29(3) above shall--

(a) if a period was specified under section 29(5) above, cease to have effect on expiry of that period, unless previously discharged under subsection (1) above;

(b) if no such period was specified, remain in force until it is discharged under subsection (1) above. "

25 Restriction of nearest relative's right to apply to tribunal

In section 66 of the 1983 Act (applications to tribunal), in subsection (1)(h) after "section 29 above" insert "on the ground specified in paragraph (c) or (d) of subsection (3) of that section".

26 Civil partners

(1) Section 26 of the 1983 Act (definition of "relative" and "nearest relative") is amended as set out in subsections (2) to (5).

(2) In subsection (1)(a), after "wife" insert "or civil partner".

(3) In subsection (5)--

(a) in paragraph (b) after "wife" insert "or civil partner", and

(b) in paragraph (c) after "wife," insert "civil partner,".

(4) In subsection (6)--

(a) for "and "wife" include a person who is living with the patient as the patient's husband or wife" substitute ", "wife" and "civil partner" include a person who is living with the patient as the patient's husband or wife or as if they were civil partners", and

(b) for "unless the husband or wife" substitute "or a patient in a civil partnership unless the husband, wife or civil partner".

(5) In subsection (7)(b), for "unless the husband or wife" substitute "or a patient in a civil partnership unless the husband, wife or civil partner".

(6) In section 27 of the 1983 Act (children and young persons in care), after "wife" insert "or civil partner".

Consent to treatment

27 Electro-convulsive therapy, etc.

After section 58 of the 1983 Act insert--

" 58A Electro-convulsive therapy, etc.

(1) This section applies to the following forms of medical treatment for mental disorder--

(a) electro-convulsive therapy; and

(b) such other forms of treatment as may be specified for the purposes of this section by regulations made by the appropriate national authority.

(2) Subject to section 62 below, a patient shall be not be given any form of treatment to which this section applies unless he falls within subsection (3), (4) or (5) below.

(3) A patient falls within this subsection if--

(a) he has attained the age of 18 years;

(b) he has consented to the treatment in question; and

(c) either the approved clinician in charge of it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it.

(4) A patient falls within this subsection if--

(a) he has not attained the age of 18 years; but

(b) he has consented to the treatment in question; and

(c) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment) has certified in writing--

(i) that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it; and

(ii) that it is appropriate for the treatment to be given.

(5) A patient falls within this subsection if a registered medical practitioner appointed as aforesaid (not being the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question) has certified in writing--

(a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment; but

(b) that it is appropriate for the treatment to be given; and

(i) an advance decision which the registered medical practitioner concerned is satisfied is valid and applicable; or

(ii) a decision made by a donee or deputy or by the Court of Protection.

(6) Before giving a certificate under subsection (5) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment but, of those persons--

(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and

(b) neither shall be the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question.

(7) This section shall not by itself confer sufficient authority for a patient who falls within section 56(5) above to be given a form of treatment to which this section applies if he is not capable of understanding the nature, purpose and likely effects of the treatment (and cannot therefore consent to it).

(8) Before making any regulations for the purposes of this section, the appropriate national authority shall consult such bodies as appear to it to be concerned.

(9) In this section--

(a) a reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient;

(b) "valid and applicable", in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act;

(c) a 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 of his authority and in accordance with that Act; and

(d) a 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 his authority and in accordance with that Act.

(10) In this section, "the appropriate national authority" means--

(a) in a case where the treatment in question would, if given, be given in England, the Secretary of State;

(b) in a case where the treatment in question would, if given, be given in Wales, the Welsh Ministers. "

28 Section 27: supplemental

(1) Part 4 of the 1983 Act (consent to treatment) is amended as follows.

(2) In section 58 (treatment requiring consent or a second opinion)--

(a) in subsection (1)(b), after "section 57 above" insert "or section 58A(1)(b) below", and

(b) in subsection (3)(b), before "has not consented to it" insert "being so capable".

(3) In section 59 (plans of treatment), for "or 58" substitute ", 58 or 58A".

(4) In section 60 (withdrawal of consent), for "or 58", substitute ", 58 or 58A".

(5) In section 61 (review of treatment)--

(a) in subsection (1), for "or 58(3)(b)" substitute ", 58(3)(b) or 58A(4) or (5)", and

(b) in subsection (3)--

(i) for "or 58(3)(b)" substitute ", 58(3)(b) or 58A(4) or (5)", and

(ii) for "and 58" substitute ", 58 and 58A".

(6) In section 62 (urgent treatment), after subsection (1) insert--

" (1A) Section 58A above, in so far as it relates to electro-convulsive therapy by virtue of subsection (1)(a) of that section, shall not apply to any treatment which falls within paragraph (a) or (b) of subsection (1) above.

(1B) Section 58A above, in so far as it relates to a form of treatment specified by virtue of subsection (1)(b) of that section, shall not apply to any treatment which falls within such of paragraphs (a) to (d) of subsection (1) above as may be specified in regulations under that section.

(1C) For the purposes of subsection (1B) above, the regulations--

(a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);

(b) may make provision which applies subject to specified exceptions; and

(7) In that section, in subsection (2), for "or 58" substitute ", 58 or 58A".

(8) In section 63 (treatment not requiring consent), for ", not being treatment falling within section 57 or 58 above," substitute ", not being a form of treatment to which section 57, 58 or 58A above applies,".

(9) In section 64 (supplementary provisions), after subsection (1A) (inserted by section 12 of this Act) insert--

" (1B) References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 58A above applies and the patient falls within section 56(5) above, be construed as references to the person in charge of the treatment.

(1C) Regulations made by virtue of section 32(2)(d) above apply for the purposes of this Part as they apply for the purposes of Part 2 of this Act. "

(10) In section 28 of the Mental Capacity Act 2005 (c. 9) (Mental Health Act matters), after subsection (1) insert--

" (1A) Subsection (1) does not apply in relation to any form of treatment to which section 58A of that Act (electro-convulsive therapy, etc.) applies if the patient comes within subsection (7) of that section (informal patient under 18 who cannot give consent). " .

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