Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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(ii) after "54A" insert "or 68A(7)", and

(b) in subsection (3)--

(i) after "made" insert "by the Secretary of State", and

(ii) for "68(4)" substitute "68A(1)".

(6) In Part 1 of Schedule 1 to that Act (application of certain provisions to patients subject to hospital and guardianship orders: patients not subject to special restrictions)--

(a) in paragraph 2--

(i) for "and 66" substitute ", 66 and 68", and

(ii) for "to 9" substitute "to 10", and

(b) after paragraph 9 insert--

" 10 In section 68--

(a) in subsection (1) paragraph (a) shall be omitted; and

(b) subsections (2) to (5) shall apply if the patient falls within paragraph (e) of subsection (1), but not otherwise. "

38 Organisation

(1) The 1983 Act is amended as follows.

(2) In section 65 (Mental Health Review Tribunals), for subsections (1) to (1C) substitute--

" (1) There shall be--

(a) a Mental Health Review Tribunal for England; and

(b) a Mental Health Review Tribunal for Wales.

(1A) The purpose of the Mental Health Review Tribunals is to deal with applications and references by and in respect of patients under the provisions of this Act. "

(3) In section 78 (procedure of tribunals)--

(a) in subsections (2)(a) and (k) and (6), for "chairman" substitute "President",

(b) in subsection (2)(a), for "any other" substitute "the other",

(d) in subsection (4)(a), for "president" substitute "chairman", and

(e) in subsection (6) omit ", if for any reason he is unable to act,".

(4) In section 79 (interpretation of Part 5), for subsection (7) substitute--

" (7) For the purposes of this Part of this Act--

(a) the area of the Mental Health Review Tribunal for England is England; and

(b) the area of the Mental Health Review Tribunal for Wales is Wales. "

(5) Schedule 2 (Mental Health Review Tribunals) is amended as set out in subsections (6) to (9).

(6) For paragraph 3 substitute--

" 3 (1) The Lord Chancellor shall appoint one of the legal members of the Mental Health Review Tribunal for England to be the President of that tribunal.

(2) The Lord Chancellor shall appoint one of the legal members of the Mental Health Review Tribunal for Wales to be the President of that tribunal. "

(7) In paragraph 4--

(a) for "chairman", in each place, substitute "President", and

(b) omit ", if for any reason he is unable to act,".

(8) In paragraph 5--

(a) for "any area" substitute "one area", and

(b) for "any other" substitute "the other".

(9) In paragraph 6--

(a) for "chairman", in each place, substitute "President", and

(b) for "president", in each place, substitute "chairman".

Chapter 6 Cross-border patients

39 Cross-border arrangements

(1) At the end of section 17 of the 1983 Act (leave of absence) insert--

" (6) Subsection (7) below applies to a person who is granted leave by or by virtue of a provision--

(a) in force in Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man; and

(b) corresponding to subsection (1) above.

(7) For the purpose of giving effect to a direction or condition imposed by virtue of a provision corresponding to subsection (3) above, the person may be conveyed to a place in, or kept in custody or detained at a place of safety in, England and Wales by a person authorised in that behalf by the direction or condition. "

(2) Schedule 5 (which contains amendments to Part 6 of the 1983 Act and related amendments) has effect.

Chapter 7 Restricted patients

40 Restriction orders

(1) In section 41(1) of the 1983 Act (restriction orders) omit the words ", either without limit of time or during such period as may be specified in the order".

(2) In section 42(4)(b) of the 1983 Act (powers in respect of patients subject to restriction orders) omit the words from ", and, if the restriction order was made for a specified period," to the end.

(3) In the following provisions omit the words ", made without limitation of time"--

(a) section 44(3) of the 1983 Act (committal to hospital),

(b) section 84(2) of the 1983 Act (removal from Islands), and

(4) In section 81(7) of the 1983 Act (removal to Northern Ireland: expiry of restriction order or direction) omit (in each place) "restriction order or".

(5) In section 81A(3) of the 1983 Act (transfer of responsibility for patient to Northern Ireland: expiry of restriction order or direction)--

(a) omit (in each place) "restriction order or", and

(b) omit "order or".

(6) In section 91(2) of the 1983 Act (patients removed from England and Wales: revival of order on return) omit the words "at any time before the end of the period for which those orders would have continued in force".

(7) But subsections (3) to (6) shall have no effect in respect of--

(a) a restriction order for a specified period made before subsection (1) comes into force, or

(b) an order made outside England and Wales which is treated under the 1983 Act as if it were a restriction order for a specified period.

41 Conditionally discharged patients subject to limitation directions

In section 75(3) of the 1983 Act (power of Mental Health Review Tribunal to direct that restriction order, etc. is to cease to have effect)--

(a) in paragraph (b), after "restriction order", insert ", limitation direction", and

(b) after "hospital order", insert ", hospital direction".

Chapter 8 Miscellaneous

42 Offence of ill-treatment: increase in maximum penalty on conviction on indictment

In section 127 of the 1983 Act (ill-treatment or wilful neglect of patients), in subsection (3)(b), for "two years" substitute "five years".

43 Informal admission of patients aged 16 or 17

In section 131 of the 1983 Act (informal admission of patients), for subsection (2) substitute--

" (2) Subsections (3) and (4) below apply in the case of a patient aged 16 or 17 years who has capacity to consent to the making of such arrangements as are mentioned in subsection (1) above.

(3) If the patient consents to the making of the arrangements, they may be made, carried out and determined on the basis of that consent even though there are one or more persons who have parental responsibility for him.

(4) If the patient does not consent to the making of the arrangements, they may not be made, carried out or determined on the basis of the consent of a person who has parental responsibility for him.

(5) In this section--

(a) the reference to a patient who has capacity is to be read in accordance with the Mental Capacity Act 2005; and

(b) "parental responsibility" has the same meaning as in the Children Act 1989. "

44 Places of safety

(1) The 1983 Act is amended as follows.

(2) In section 135 (warrant to search for and remove patients), after subsection (3) insert--

" (3A) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (3) above, take a person detained in a place of safety under that subsection to one or more other places of safety.

(3B) A person taken to a place of safety under subsection (3A) above may be detained there for a period ending no later than the end of the period of 72 hours mentioned in subsection (3) above. "

(3) In section 136 (mentally disordered persons found in public places), after subsection (2) insert--

" (3) A constable, an approved mental health professional or a person authorised by either of them for the purposes of this subsection may, before the end of the period of 72 hours mentioned in subsection (2) above, take a person detained in a place of safety under that subsection to one or more other places of safety.

(4) A person taken to a place of a safety under subsection (3) above may be detained there for a purpose mentioned in subsection (2) above for a period ending no later than the end of the period of 72 hours mentioned in that subsection. "

45 Delegation of powers of managers of NHS foundation trusts

(1) In section 23(6) of the 1983 Act (delegation of NHS foundation trust's power to discharge patients), for the words from "non-executive directors" to the end substitute "persons authorised by the board of the trust in that behalf each of whom is neither an executive director of the board nor an employee of the trust."

(2) In section 32(3) of the 1983 Act (power to make provision about how hospital managers' functions under Part 2 of that Act are to be exercised), after "23(4)" insert "and (6)".

(3) After section 142A of the 1983 Act (inserted by section 17 of this Act), insert--

" 142B Delegation of powers of managers of NHS foundation trusts

(1) The constitution of an NHS foundation trust may not provide for a function under this Act to be delegated otherwise than in accordance with provision made by or under this Act.

(2) Paragraph 15(3) of Schedule 7 to the National Health Service Act 2006 (which provides that the powers of a public benefit corporation may be delegated to a committee of directors or to an executive director) shall have effect subject to this section. "

46 Local Health Boards

(1) The 1983 Act is amended as follows.

(2) In section 19(3) (removal of patients), after "NHS foundation trust", in each place, insert ", Local Health Board".

(3) In section 145(1) (interpretation)--

(a) in the definition of "hospital", after paragraph (b) insert " ; and

(c) any hospital as defined by section 206 of the National Health Service (Wales) Act 2006 which is vested in a Local Health Board; " , and

(b) in the definition of "the managers", after paragraph (bc) insert--

" (bd) in relation to a hospital vested in a Local Health Board, the Board; " .

47 Welsh Ministers: procedure for instruments

(1) Section 143 of the 1983 Act (general provisions as to regulations, orders and rules) is amended as follows.

(2) In subsection (2), for "or rules made" substitute "made by the Secretary of State, or rules made,".

(3) After subsection (3) insert--

" (3A) Subsections (3B) to (3D) apply where power to make regulations or an order under this Act is conferred on the Welsh Ministers (other than by or by virtue of the Government of Wales Act 2006).

(3B) Any power of the Welsh Ministers to make regulations or an order shall be exercisable by statutory instrument.

(3C) Any statutory instrument containing regulations, or an order under section 68A(7) above, made by the Welsh Ministers shall be subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(3D) No order shall be made under section 68A(1) above by the Welsh Ministers unless a draft of it has been approved by a resolution of the National Assembly for Wales.

(3E) In this section--

(a) references to the Secretary of State include the Secretary of State and the Welsh Ministers acting jointly; and

(b) references to the Welsh Ministers include the Welsh Ministers and the Secretary of State acting jointly. "

Part 2 Amendments to other Acts

Chapter 1 Amendments to Domestic Violence, Crime and Victims Act 2004

48 Victims' rights

Schedule 6 (which makes amendments to Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28)) has effect.

Chapter 2 Amendments to Mental Capacity Act 2005

49 Independent mental capacity advocacy service: exceptions

For section 40 of the Mental Capacity Act 2005 (c. 9) (independent mental capacity advocacy service: exceptions) substitute--

" 40 Exceptions

The duty imposed by section 37(3), 38(3) or (4) or 39(4) or (5) does not apply where there is--

(a) a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates,

(b) a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters, or

50 Mental Capacity Act 2005: deprivation of liberty

(1) The Mental Capacity Act 2005 (c. 9) is amended as follows.

(2) After section 4 insert--

" 4A Restriction on deprivation of liberty

(1) This Act does not authorise any person ("D") to deprive any other person ("P") of his liberty.

(2) But that is subject to--

(a) the following provisions of this section, and

(b) section 4B.

(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

4B Deprivation of liberty necessary for life-sustaining treatment etc

(1) If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.

(2) The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.

(3) The second condition is that the deprivation of liberty--

(a) is wholly or partly for the purpose of--

(i) giving P life-sustaining treatment, or

(ii) doing any vital act, or

(b) consists wholly or partly of--

(i) giving P life-sustaining treatment, or

(ii) doing any vital act.

(4) The third condition is that the deprivation of liberty is necessary in order to--

(a) give the life-sustaining treatment, or

(b) do the vital act.

(5) A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition. "

(3) After section 16 insert--

" 16A Section 16 powers: Mental Health Act patients etc

(1) If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.

(2) If--

(a) a welfare order includes provision which authorises a person to be deprived of his liberty, and

(b) that person becomes ineligible to be deprived of liberty by this Act,

the provision ceases to have effect for as long as the person remains ineligible.

(3) Nothing in subsection (2) affects the power of the court under section 16(7) to vary or discharge the welfare order.

(4) For the purposes of this section--

(a) Schedule 1A applies for determining whether or not P is ineligible to be deprived of liberty by this Act;

(b) "welfare order" means an order under section 16(2)(a). "

(4) Omit the following provisions (which make specific provision about deprivation of liberty)--

(a) section 6(5);

(b) section 11(6);

(5) Schedule 7 (which inserts the new Schedule A1 into the Mental Capacity Act 2005 (c. 9)) has effect.

(6) Schedule 8 (which inserts the new Schedule 1A into the Mental Capacity Act 2005) has effect.

(7) Schedule 9 (which makes other amendments to the Mental Capacity Act 2005 and to other Acts) has effect.

(8) In subsection (9)--

"GOWA 1998" means the Government of Wales Act 1998 (c. 38);
"GOWA 2006" means the Government of Wales Act 2006 (c. 32);
"initial period" has the same meaning as in Schedule 11 to GOWA 2006.

(9) If this Act is passed after the end of the initial period, the functions conferred on the National Assembly for Wales by virtue of any provision of this Part of this Act are to be treated for the purposes of Schedule 11 to GOWA 2006 as if they--

(a) had been conferred on the Assembly constituted by GOWA 1998 by an Act passed before the end of the initial period, and

(b) were exercisable by that Assembly immediately before the end of the initial period.

(10) If any function of making subordinate legislation conferred by virtue of any provision of this Part of this Act is transferred to the Welsh Ministers (whether by virtue of subsection (9) or otherwise)--

(a) paragraphs 34 and 35 of Schedule 11 to the Government of Wales Act 2006 do not apply; and

(b) subsections (11) and (12) apply instead.

(11) If a relevant statutory instrument contains regulations under paragraph 42(2)(b), 129, 162 or 163 of Schedule A1 to the Mental Capacity Act 2005 (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 the National Assembly for Wales.

(12) Subject to that, a relevant statutory instrument is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(13) In subsections (11) and (12) "relevant statutory instrument" means a statutory instrument containing subordinate legislation made in exercise of a function transferred as mentioned in subsection (10).

51 Amendment to section 20(11) of Mental Capacity Act 2005

In section 20 of the Mental Capacity Act 2005 (c. 9) (restrictions on deputies), in subsection (11)(a), for "or" substitute "and".

Part 3 General

52 Meaning of "1983 Act"

In this Act "the 1983 Act" means the Mental Health Act 1983 (c. 20).

53 Transitional provisions and savings

Schedule 10 (which contains transitional provisions and savings) has effect.

54 Consequential provisions

(1) The Secretary of State may by order made by statutory instrument make supplementary, incidental or consequential provision for the purposes of, in consequence of, or for giving full effect to a provision of this Act.

(2) An order under subsection (1) may, in particular--

(a) amend or repeal any provision of an Act passed before, or in the same Session as, this Act;

(b) amend or revoke any provision of subordinate legislation made before the passing of this Act;

(3) In relation to provision which deals with matters with respect to which functions are exercisable by the Welsh Ministers--

(a) the power under subsection (1) is exercisable by the Secretary of State only with agreement of the Welsh Ministers, and

(b) the power under that subsection is also exercisable by the Welsh Ministers except that provision may not be made by virtue of subsection (2)(a).

(4) The amendments that may be made by virtue of subsection (2) are in addition to those made by or by virtue of any other provision of this Act.

(5) A statutory instrument containing an order under subsection (1) which makes provision by virtue of subsection (2)(a) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(6) A statutory instrument containing any other order under subsection (1) made by the Secretary of State is subject to annulment in pursuance of a resolution of either House of Parliament.

(7) A statutory instrument containing an order under subsection (1) made by the Welsh Ministers is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(8) In subsection (2), "subordinate legislation" has the same meaning as in the Interpretation Act 1978 (c. 30).

55 Repeals and revocations

The enactments mentioned in Schedule 11 are repealed or revoked to the extent specified.

56 Commencement

(1) This Act (other than sections 51 to 53 (and Schedule 10), this section and sections 57 to 59) comes into force in accordance with provision made by the Secretary of State by order made by statutory instrument.

(2) In relation to provision which deals with matters with respect to which functions are exercisable by the Welsh Ministers, the power under subsection (1) is exercisable only with their agreement.

(3) Section 51 comes into force in accordance with provision made by the Lord Chancellor by order made by statutory instrument.

(4) An order under this section may--

(a) make different provision for different purposes (including different provision for different areas and different provision for different descriptions of patient);

(b) include transitional or saving provision.

(5) The provision which may be made by virtue of subsection (4)(b) includes provision modifying the application of a provision of this Act pending the commencement of a provision of another enactment.

(6) A statutory instrument containing an order under this section which makes provision by virtue of subsection (4)(b) (including provision within section 57) is subject to annulment in pursuance of a resolution of either House of Parliament.

57 Commencement of section 36

(1) An order under section 56 providing for the commencement of section 36 may, in particular, provide--

(a) for that section not to apply to or affect a patient who is subject to after-care under supervision immediately before that commencement, and

(b) for the patient to cease to be subject to after-care under supervision, and for his case to be dealt with, in accordance with provision made by the order.

(2) The order may require--

(a) a Primary Care Trust or Local Health Board to secure that the patient is examined by a registered medical practitioner of a description specified in the order;

(b) the registered medical practitioner to examine the patient with a view to making a decision about his case by reference to criteria specified in the order.

(3) The order may require the registered medical practitioner, having complied with provision made by virtue of subsection (2)(b)--

(a) to discharge the patient,

(b) to recommend that he be detained in hospital,

(d) to make a community treatment order in respect of him.

(4) The order may, in respect of a recommendation made by virtue of subsection (3)(b) or (c)--

(a) provide that the recommendation is to be made to a local social services authority determined in accordance with the order;

(b) provide that the recommendation is to be made in accordance with any other requirements specified in the order;

(c) require the local social services authority determined in accordance with paragraph (a), in response to the recommendation, to make arrangements for an approved mental health professional to consider the patient's case on their behalf.

(5) The order may provide that a registered medical practitioner shall not make a community treatment order in respect of a patient unless an approved mental health professional states in writing--

(a) that he agrees with the decision made by the practitioner about the patient's case, and

(b) that it is appropriate to make the order.

(6) An order requiring a registered medical practitioner to make a community treatment order in respect of a patient shall include provision about--

(a) the effect of the community treatment order (in particular, replacing after-care under supervision with a contingent requirement to attend, and be detained at, a hospital), and

(b) the effect of its revocation (including, in particular, provision for detention under section 3 of the 1983 Act).

(7) The order may modify a provision of the 1983 Act in its application in relation to a patient who is subject to after-care under supervision immediately before the commencement of section 36.

(8) Provision made by virtue of subsection (7) may, in particular--

(a) modify any of sections 25A to 25J of the 1983 Act in their application in relation to a patient for so long as he is, by virtue of subsection (1)(a), subject to after-care under supervision after the commencement of section 36;

(b) modify any of sections 17A to 17G, 20A and 20B of that Act (inserted by section 32 of this Act) in their application in relation to a patient in respect of whom a community treatment order is made by virtue of subsection (3)(d).

(9) A reference in this section to section 36 includes the amendments and repeals in Schedules 3 and 11 consequential on that section.

(10) An expression used in this section and in the 1983 Act has the same meaning in this section as it has in that Act.

58 Extent

(1) The provisions of this Act which amend other enactments have the same extent as the enactments which they amend.

(2) But subsection (1) is subject to--

(a) paragraph 35 of Schedule 3,

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