Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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(6) In any case (except as provided in subsection (8) below), sections 18, 21 and 21A above shall apply in relation to the patient as if he had absented himself without leave on that day.

(7) In its application by virtue of subsection (6) above section 18 above shall have effect as if--

(a) in subsection (4) for the words from "later of" to the end there were substituted "end of the period of 28 days beginning with the first day of his absence without leave"; and

(b) subsections (4A) and (4B) were omitted.

(8) In relation to a community patient who was not recalled to hospital under section 17E above at the time when his detention in custody began--

(a) section 18 above shall not apply; but

(b) sections 21 and 21A above shall apply as if he had absented himself without leave on the day on which he is discharged from custody and had returned himself as provided in those sections on the last day of the period of 28 days beginning with that day. "

Discharge

10 (1) Section 23 (discharge of patients) is amended as follows.

(2) In subsection (1) for the words from "from detention" to the end substitute "absolutely from detention or guardianship is made in accordance with this section".

(3) After subsection (1) insert--

" (1A) Subject to the provisions of this section and section 25 below, a community patient shall cease to be liable to recall under this Part of this Act, and the application for admission for treatment cease to have effect, if an order in writing discharging him from such liability is made in accordance with this section.

(1B) An order under subsection (1) or (1A) above shall be referred to in this Act as "an order for discharge". "

(4) In subsection (2), after paragraph (b) insert--

" (c) where the patient is a community patient, by the responsible clinician, by the managers of the responsible hospital or by the nearest relative of the patient. "

(5) In subsection (3)--

(a) for the words from "is liable" to "treatment" substitute "falls within subsection (3A) below", and

(b) for "the patient is maintained" substitute "arrangements have been made in respect of the patient".

(6) After subsection (3) insert--

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

(a) he is liable to be detained in a registered establishment in pursuance of an application for admission for assessment or for treatment; or

(b) he is a community patient and the responsible hospital is a registered establishment. "

11 (1) Section 24 (visiting and examination of patients) is amended as follows.

(2) In subsection (1), after "this Act" insert ", or who is a community patient,".

(3) In subsection (3)--

(a) for the words from ", in respect of" to "his discharge" substitute "any power under section 23(3) above to make an order for a patient's discharge", and

(b) in paragraph (b) for "the home" substitute "the establishment in question".

(4) In subsection (4)--

(a) after "the detention of the patient" insert ", or (as the case may be) for his liability to recall," and

(b) for "the home" substitute "the establishment".

12 (1) Section 25 (restrictions on discharge by nearest relative) is amended as follows.

(2) In subsection (1), after "shall not be made" insert "under section 23 above".

(3) After that subsection insert--

" (1A) Subsection (1) above shall apply to an order for the discharge of a community patient as it applies to an order for the discharge of a patient who is liable to be detained in a hospital, but with the reference to the managers of the hospital being read as a reference to the managers of the responsible hospital. "

(4) In subsection (2), after "treatment" insert ", or in respect of a community patient,".

Orders appointing acting nearest relative

13 In section 29 (appointment by court of acting nearest relative), in subsection (3)(d) omit the words "from hospital or guardianship".

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

(2) In subsection (4), for paragraphs (a) and (b) substitute--

" (a) if--

(i) on the date of the order the patient was liable to be detained or subject to guardianship by virtue of a relevant application, order or direction; or

(ii) he becomes so liable or subject within the period of three months beginning with that date; or

(iii) he was a community patient on the date of the order,

it shall cease to have effect when he is discharged under section 23 above or 72 below or the relevant application, order or direction otherwise ceases to have effect (except as a result of his being transferred in pursuance of regulations under section 19 above);

(b) otherwise, it shall cease to have effect at the end of the period of three months beginning with the date of the order. "

(3) After subsection (4) insert--

" (4A) In subsection (4) above, reference to a relevant application, order or direction is to any of the following--

(a) an application for admission for treatment;

(b) a guardianship application;

Regulations for purposes of Part 2

15 In section 32 (regulations for purposes of Part 2), in subsection (2)(c) after "this Part of this Act" insert "or community patients".

Wards of court

16 (1) Section 33 (special provisions as to wards of court) is amended as follows.

(2) In subsection (2), after "admission under this Part of this Act" insert "or is a community patient".

(3) For subsection (4) substitute--

" (4) Where a community treatment order has been made in respect of a minor who is a ward of court, the provisions of this Part of this Act relating to community treatment orders and community patients have effect in relation to the minor subject to any order which the court makes in the exercise of its wardship jurisdiction; but this does not apply as regards any period when the minor is recalled to hospital under section 17E above. "

Restricted patients

17 In section 41 (power of higher courts to restrict discharge from hospital), in subsection (3)(aa) for "after-care under supervision" substitute "community treatment orders and community patients".

Applications and references to Mental Health Review Tribunal

18 (1) Section 66 (applications to tribunals) is amended as follows.

(2) In subsection (1)--

(a) after paragraph (c) insert--

" (ca) a community treatment order is made in respect of a patient; or

(cb) a community treatment order is revoked under section 17F above in respect of a patient; or " ,

(b) in paragraph (f), after "discharged" insert "under section 23 above",

" (fza) a report is furnished under section 20A above in respect of a patient and the patient is not discharged under section 23 above; or " ,

(d) after paragraph (fa) insert--

" (faa) a report is furnished under subsection (2) of section 21B above in respect of a community patient and subsection (6A) of that section applies (or subsections (6A) and (6B)(b) of that section apply) in the case of the report; or " ,

(e) in paragraph (g), after "treatment" insert "or a community patient", and

(f) in paragraph (h), after "this Act" insert "or who is a community patient".

(3) In subsection (2)--

(a) after paragraph (c) insert--

" (ca) in the case mentioned in paragraph (ca) of that subsection, six months beginning with the day on which the community treatment order is made;

(cb) in the case mentioned in paragraph (cb) of that subsection, six months beginning with the day on which the community treatment order is revoked; " , and

(b) after paragraph (f) insert--

" (fza) in the cases mentioned in paragraphs (fza) and (faa) of that subsection, the period or periods for which the community treatment period is extended by virtue of the report; " .

(4) After subsection (2) insert--

" (2A) Nothing in subsection (1)(b) above entitles a community patient to make an application by virtue of that provision even if he is admitted to a hospital on being recalled there under section 17E above. "

19 In section 67 (references to tribunals by Secretary of State concerning Part 2 patients), in subsection (1), at the end insert "or of any community patient".

20 In section 69 (applications to tribunals concerning patients subject to hospital and guardianship orders)--

(a) in subsection (1), for paragraph (a) substitute--

" (a) in respect of a patient liable to be detained in pursuance of a hospital order or a community patient who was so liable immediately before he became a community patient, by the nearest relative of the patient in any period in which an application may be made by the patient under any such provision as so applied; " ,

(b) in subsection (2)(b), omit the words "45B(2), 46(3),", and

" (3) The provisions of section 66 above as applied by section 40(4) above are subject to subsection (4) below.

(4) If the initial detention period has not elapsed when the relevant application period begins, the right of a hospital order patient to make an application by virtue of paragraph (ca) or (cb) of section 66(1) above shall be exercisable only during whatever remains of the relevant application period after the initial detention period has elapsed.

(5) In subsection (4) above--

(a) "hospital order patient" means a patient who is subject to a hospital order, excluding a patient of a kind mentioned in paragraph (a) or (b) of subsection (2) above;

(b) "the initial detention period", in relation to a hospital order patient, means the period of six months beginning with the date of the hospital order; and

(c) "the relevant application period" means the relevant period mentioned in paragraph (ca) or (cb), as the case may be, of section 66(2) above. "

21 (1) Section 72 (powers of tribunals) is amended as follows.

(2) In subsection (1)--

(a) after "this Act" insert "or is a community patient", and

(b) after paragraph (b) insert--

" (c) the tribunal shall direct the discharge of a community patient if they are not satisfied--

(i) that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or

(ii) that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or

(iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or

(iv) that appropriate medical treatment is available for him; or

(v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself. "

(3) After subsection (1) insert--

" (1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder). "

(4) For subsection (3A) substitute--

" (3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because they think it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal--

(a) may recommend that the responsible clinician consider whether to make a community treatment order; and

(b) may (but need not) further consider the patient's case if the responsible clinician does not make an order. "

22 In section 76 (visiting and examination of patients), in subsection (1), after "this Act" insert "or a community patient,".

23 In section 77 (general provisions concerning tribunal applications), in subsection (3) for the words from "to the tribunal" to the end substitute--

" (a) in the case of a patient who is liable to be detained in a hospital, to the tribunal for the area in which that hospital is situated;

(b) in the case of a community patient, to the tribunal for the area in which the responsible hospital is situated;

After-care services

24 In section 117 (after-care), in subsection (2) for the words from "patient who is subject" to the end substitute "community patient while he remains such a patient."

Code of practice

25 In section 118 (code of practice), in subsection (1)(a) for "after-care under supervision" substitute "community patients".

General protection of detained patients

26 (1) Section 120 (general protection of detained patients) is amended as follows.

(2) In subsection (1)--

(a) after "liable to be detained under this Act" insert "or to community patients",

(b) in paragraph (a) after "registered establishments" insert "and community patients in hospitals and establishments of any description and (if access is granted) other places", and

(i) in sub-paragraph (i), after "this Act in" insert ", or recalled under section 17E above to,", and

(ii) in sub-paragraph (ii), after "detained" insert "or is or has been a community patient".

(3) In subsection (4)--

(a) in paragraph (a), for "registered establishment" substitute "hospital or establishment of any description", and

(b) in paragraph (b), for "in a registered establishment" substitute "under this Act or who is or has been a community patient".

(4) After subsection (7) insert--

" (8) In this section, "establishment of any description" has the same meaning as in section 119 above. "

27 In section 121 (Mental Health Act Commission), in subsection (4), for the words from "not liable" to the end substitute "neither liable to be detained under this Act nor community patients".

Offences

28 In section 128 (assisting patients to absent themselves without leave, etc), in subsection (1) after "under this Act" insert "or is a community patient".

Duty to give information

29 In section 132 (duty of managers of hospitals to give information to detained patients), in subsection (2) for "nursing home" substitute "establishment".

30 After section 132 insert--

" 132A Duty of managers of hospitals to give information to community patients

(1) The managers of the responsible hospital shall take such steps as are practicable to ensure that a community patient understands--

(a) the effect of the provisions of this Act applying to community patients; and

(b) what rights of applying to a Mental Health Review Tribunal are available to him in that capacity;

and those steps shall be taken as soon as practicable after the patient becomes a community patient.

(2) The steps to be taken under subsection (1) above shall include giving the requisite information both orally and in writing.

(3) The managers of the responsible hospital shall, except where the community patient otherwise requests, take such steps as are practicable to furnish the person (if any) appearing to them to be his nearest relative with a copy of any information given to him in writing under subsection (1) above; and those steps shall be taken when the information is given to the patient or within a reasonable time thereafter. "

31 In section 133 (duty of managers of hospitals to inform nearest relatives of discharge), after subsection (1) insert--

" (1A) The reference in subsection (1) above to a patient who is to be discharged includes a patient who is to be discharged from hospital under section 17A above.

(1B) Subsection (1) above shall also apply in a case where a community patient is discharged under section 23 or 72 above (otherwise than by virtue of an order for discharge made by his nearest relative), but with the reference in that subsection to the managers of the hospital or registered establishment being read as a reference to the managers of the responsible hospital. "

Retaking of patients escaping from custody

32 In section 138 (retaking of patients escaping from custody), in subsection (1)(b) after "under this Act," insert "or a community patient who was recalled to hospital under section 17E above,".

Members of Parliament suffering from mental disorder

33 In section 141 (Members of Parliament suffering from mental disorder), after subsection (6B) (inserted by Schedule 1 to this Act) insert--

" (6C) References in this section to a member who is authorised to be detained shall not include a member who is a community patient (whether or not he is recalled to hospital under section 17E above). "

Interpretation

34 (1) Section 145 (interpretation) is amended as follows.

(2) In subsection (1), in the definition of "absent without leave", after "related expressions" insert "(including expressions relating to a patient's liability to be returned to a hospital or other place)".

(3) In that subsection, at the appropriate places insert--

" "community patient" has the meaning given in section 17A above; "

" "community treatment order" and "the community treatment order" have the meanings given in section 17A above; "

" "the community treatment period" has the meaning given in section 20A above; "

" "the responsible hospital" has the meaning given in section 17A above; " .

(4) In subsection (3), after "guardianship" insert "or a community patient".

Extent

35 (1) In section 146 (application to Scotland), omit the words from "128" to "guardianship)".

(2) This paragraph does not extend to Scotland.

Application of certain provisions to patients concerned in criminal proceedings

36 (1) In Schedule 1 (application of certain provisions to patients subject to hospital and guardianship orders), Part 1 (patients not subject to special restrictions) is amended as follows.

(2) In paragraph 1, after "17" insert "to 17C, 17E, 17F, 20A".

(3) In paragraph 2--

(a) for "18, 19, 20" substitute "17D, 17G, 18 to 20, 20B", and

(b) for "paragraphs 3" substitute "paragraphs 2A".

(4) After paragraph 2 insert--

" 2A In section 17D(2)(a) for the reference to section 6(2) above there shall be substituted a reference to section 40(1)(b) below.

2B In section 17G--

(a) in subsection (2) for the reference to section 6(2) above there shall be substituted a reference to section 40(1)(b) below;

(b) in subsection (4) for paragraphs (a) and (b) there shall be substituted the words "the order or direction under Part 3 of this Act in respect of him were an order or direction for his admission or removal to that other hospital"; and

(c) in subsection (5) for the words from "the patient" to the end there shall be substituted the words "the date of the relevant order or direction under Part 3 of this Act were the date on which the community treatment order is revoked". "

(5) After paragraph 5 insert--

" 5A In section 19A(2), paragraph (b) shall be omitted. "

(6) After paragraph 6 insert--

" 6A In section 20B(1), for the reference to the application for admission for treatment there shall be substituted a reference to the order or direction under Part 3 of this Act by virtue of which the patient is liable to be detained. "

(7) In paragraph 8(b), for "and (b)" substitute "to (c)".

37 (1) Part 2 of that Schedule (patients subject to special restrictions) is amended as follows.

(2) In paragraph 2, for "17 to 19" substitute "17, 18, 19".

(3) For paragraph 6 substitute--

" 6 In section 22, subsections (1) and (5) shall not apply. "

Section 32

SCHEDULE 4 Supervised community treatment: amendments to other Acts

Administration of Justice Act 1960

1 After section 5 of the Administration of Justice Act 1960 (c. 65) insert--

" 5A Power to order continuation of community treatment order

(1) Where the defendant in any proceedings from which an appeal lies under section 1 of this Act would, but for the decision of the court below, be liable to recall, and immediately after that decision the prosecutor is granted, or gives notice that he intends to apply for, leave to appeal, the court may make an order under this section.

(2) For the purposes of this section, a person is liable to recall if he is subject to a community treatment order (within the meaning of the Mental Health Act 1983) and, when that order was made, he was liable to be detained in pursuance of an order or direction under Part 3 of that Act.

(3) An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as any appeal under section 1 of this Act is pending.

(4) Where the court makes an order under this section, the provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.

(5) An order under this section shall (unless the appeal has previously been disposed of) cease to have effect at the expiration of the period for which the defendant would, but for the decision of the court below, have been--

(a) liable to recall; or

(b) where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.

(6) Where the court below has power to make an order under this section, and either no such order is made or the defendant is discharged by virtue of subsection (4) or (5) of this section before the appeal is disposed of, the defendant shall not be liable to be again detained as the result of the decision of the Supreme Court on the appeal. "

Criminal Appeal Act 1968

2 (1) The Criminal Appeal Act 1968 (c. 19) is amended as follows.

(2) In section 8 (supplementary provisions as to retrial), after subsection (3A) insert--

" (3B) If the person ordered to be retried--

(a) was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;

(b) was then made subject to a community treatment order (within the meaning of that Act); and

the order or direction under Part 3 of that Act and the community treatment order shall continue in force pending the retrial as if the appeal had not been allowed, and any order made by the Court of Appeal under this section for his release on bail shall have effect subject to the community treatment order. "

(3) After section 37 insert--

" 37A Continuation of community treatment order on appeal by the Crown

(1) The following provisions apply where, immediately after a decision of the Court of Appeal from which an appeal lies to the Supreme Court, the prosecutor is granted, or gives notice that he intends to apply for, leave to appeal.

(2) If, but for the decision of the Court of Appeal, the defendant would be liable to recall, the Court of Appeal may make an order under this section.

(3) For the purposes of this section, a person is liable to recall if he is subject to a community treatment order (within the meaning of the Mental Health Act 1983) and, when that order was made, he was liable to be detained in pursuance of an order or direction under Part 3 of that Act.

(4) An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as an appeal to the Supreme Court is pending.

(5) Where an order is made under this section the provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.

(6) An order under this section shall (unless the appeal has previously been disposed of) cease to have effect at the expiration of the period for which the defendant would, but for the decision of the Court of Appeal, have been--

(a) liable to recall; or

(b) where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.

(7) Where the Court of Appeal have power to make an order under this section, and either no such order is made or the defendant is discharged, by virtue of subsection (5) or (6) of this section, before the appeal is disposed of, the defendant shall not be liable to be again detained as the result of the decision of the Supreme Court on the appeal. "

Courts-Martial (Appeals) Act 1968

3 (1) The Courts-Martial (Appeals) Act 1968 (c. 20) is amended as follows.

(2) In section 20 (implementation of authority for retrial etc), after subsection (4) insert--

" (4A) Where retrial is authorised in the case of a person who--

(a) was liable to be detained in pursuance of an order or direction under Part 3 of the Mental Health Act 1983;

(b) was then made subject to a community treatment order (within the meaning of that Act); and

the order or direction under Part 3 of that Act and the community treatment order shall continue in force until the relevant time (as defined in subsection (3A)) as if his conviction had not been quashed.

(4B) An order under subsection (1E)(a) is of no effect in relation to a person for so long as he is subject to a community treatment order. "

(3) In section 43 (detention of accused), after subsection (3) insert--

" (3A) The relevant provisions of the Mental Health Act 1983 with respect to community treatment orders (within the meaning of that Act) shall also apply for the purposes of subsection (3). "

(4) After that section insert--

" 43A Continuation of community treatment order

(1) The Appeal Court may make an order under this section where--

(a) but for the decision of the Appeal Court, the accused would be liable to recall; and

(b) immediately after that decision, the Director of Service Prosecutions is granted leave to appeal or gives notice that he intends to apply for leave to appeal.

(3) An order under this section is an order providing for the continuation of the community treatment order and the order or direction under Part 3 of that Act so long as any appeal to the Supreme Court is pending.

(4) Where the Appeal Court makes an order under this section, the relevant provisions of the Mental Health Act 1983 with respect to persons liable to recall (including provisions as to the extension of the community treatment period, the removal or discharge of community patients, the revocation of community treatment orders and the re-detention of patients following revocation) shall apply accordingly.

(5) An order under this section shall (unless the appeal has been previously disposed of) cease to have effect at the end of the period for which the accused would, but for the decision of the Appeal Court, have been--

(a) liable to recall; or

(b) where the community treatment order is revoked, liable to be detained in pursuance of the order or direction under Part 3 of the Mental Health Act 1983.

(6) Where the Appeal Court has power to make an order under this section and either no such order is made or the accused is discharged by virtue of subsection (4) or (5) above before the appeal is disposed of, the accused shall not be liable to be again detained as a result of the decision of the Supreme Court on the appeal. "

Juries Act 1974

4 In Schedule 1 to the Juries Act 1974 (c. 23) (mentally disordered persons and persons disqualified from serving), at the end of paragraph 2 insert "or subject to a community treatment order under section 17A of that Act".

Section 39

SCHEDULE 5 Cross-border arrangements

Part 1 Amendments to Part 6 of 1983 Act

Introduction

1 Part 6 of the 1983 Act is amended as set out in this Part of this Schedule.

Transfer of patients: Scotland

2 In section 80 (removal of patients to Scotland) (the cross-heading immediately above which becomes "Removal to and from Scotland"), in subsection (1), omit the words "or subject to guardianship" and the words "or, as the case may be, for receiving him into guardianship".

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