Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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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".

3 (1) After that section insert--

" 80ZA Transfer of responsibility for community patients to Scotland

(1) If it appears to the appropriate national authority, in the case of a community patient, that the conditions mentioned in subsection (2) below are met, the authority may authorise the transfer of responsibility for him to Scotland.

(2) The conditions are--

(a) a transfer under this section is in the patient's interests; and

(b) arrangements have been made for dealing with him under enactments in force in Scotland corresponding or similar to those relating to community patients in this Act.

(3) The appropriate national authority may not act under subsection (1) above while the patient is recalled to hospital under section 17E above.

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

(a) in relation to a community patient in respect of whom the responsible hospital is in England, the Secretary of State;

(b) in relation to a community patient in respect of whom the responsible hospital is in Wales, the Welsh Ministers. "

(2) This paragraph does not extend to Scotland.

4 (1) After section 80A (the title to which becomes "Transfer of responsibility for conditionally discharged patients to Scotland") insert--

" 80B Removal of detained patients from Scotland

(1) This section applies to a patient if--

(a) he is removed to England and Wales under regulations made under section 290(1)(a) of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act");

(b) immediately before his removal, his detention in hospital was authorised by virtue of that Act or the Criminal Procedure (Scotland) Act 1995; and

(c) on his removal, he is admitted to a hospital in England or Wales.

(2) He shall be treated as if, on the date of his admission to the hospital, he had been so admitted in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in England and Wales which most closely corresponds to the enactment by virtue of which his detention in hospital was authorised immediately before his removal.

(3) If, immediately before his removal, he was subject to a measure under any enactment in force in Scotland restricting his discharge, he shall be treated as if he were subject to an order or direction under the enactment in force in England and Wales which most closely corresponds to that enactment.

(4) If, immediately before his removal, the patient was liable to be detained under the 2003 Act by virtue of a transfer for treatment direction, given while he was serving a sentence of imprisonment (within the meaning of section 136(9) of that Act) imposed by a court in Scotland, he shall be treated as if the sentence had been imposed by a court in England and Wales.

(5) If, immediately before his removal, the patient was subject to a hospital direction or transfer for treatment direction, the restriction direction to which he is subject by virtue of subsection (3) above shall expire on the date on which that hospital direction or transfer for treatment direction (as the case may be) would have expired if he had not been so removed.

(6) If, immediately before his removal, the patient was liable to be detained under the 2003 Act by virtue of a hospital direction, he shall be treated as if any sentence of imprisonment passed at the time when that hospital direction was made had been imposed by a court in England and Wales.

(7) Any directions given by the Scottish Ministers under regulations made under section 290 of the 2003 Act as to the removal of a patient to which this section applies shall have effect as if they were given under this Act.

(8) Subsection (8) of section 80 above applies to a reference in this section as it applies to one in that section.

(9) In this section--

• "hospital direction" means a direction made under section 59A of the Criminal Procedure (Scotland) Act 1995; and

• "transfer for treatment direction" has the meaning given by section 136 of the 2003 Act.

80C Removal of patients subject to compulsion in the community from Scotland

(1) This section applies to a patient if--

(a) he is subject to an enactment in force in Scotland by virtue of which regulations under section 289(1) of the Mental Health (Care and Treatment) (Scotland) Act 2003 apply to him; and

(b) he is removed to England and Wales under those regulations.

(2) He shall be treated as if on the date of his arrival at the place where he is to reside in England or Wales--

(a) he had been admitted to a hospital in England or Wales in pursuance of an application or order made on that date under the corresponding enactment; and

(b) a community treatment order had then been made discharging him from the hospital.

(3) For these purposes--

(a) if the enactment to which the patient was subject in Scotland was an enactment contained in the Mental Health (Care and Treatment) (Scotland) Act 2003, the corresponding enactment is section 3 of this Act;

(b) if the enactment to which he was subject in Scotland was an enactment contained in the Criminal Procedure (Scotland) Act 1995, the corresponding enactment is section 37 of this Act.

(4) "The responsible hospital", in the case of a patient in respect of whom a community treatment order is in force by virtue of subsection (2) above, means the hospital to which he is treated as having been admitted by virtue of that subsection, subject to section 19A above.

(5) As soon as practicable after the patient's arrival at the place where he is to reside in England or Wales, the responsible clinician shall specify the conditions to which he is to be subject for the purposes of section 17B(1) above, and the conditions shall be deemed to be specified in the community treatment order.

(6) But the responsible clinician may only specify conditions under subsection (5) above which an approved mental health professional agrees should be specified.

80D Transfer of conditionally discharged patients from Scotland

(1) This section applies to a patient who is subject to--

(a) a restriction order under section 59 of the Criminal Procedure (Scotland) Act 1995; and

(b) a conditional discharge under section 193(7) of the Mental Health (Care and Treatment) (Scotland) Act 2003 ("the 2003 Act").

(2) A transfer of the patient to England and Wales under regulations made under section 290 of the 2003 Act shall have effect only if the Secretary of State has consented to the transfer.

(3) If a transfer under those regulations has effect, the patient shall be treated as if--

(a) on the date of the transfer he had been conditionally discharged under section 42 or 73 above; and

(b) he were subject to a hospital order under section 37 above and a restriction order under section 41 above.

(4) If the restriction order to which the patient was subject immediately before the transfer was of limited duration, the restriction order to which he is subject by virtue of subsection (3) above shall expire on the date on which the first-mentioned order would have expired if the transfer had not been made. "

(2) This paragraph does not extend to Scotland.

Transfer of patients: Northern Ireland

5 In section 81 (removal of patients to Northern Ireland), in subsection (2), for the words from "where he is" to "the corresponding enactment" substitute "where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in this Act, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment".

6 After that section insert--

" 81ZA Removal of community patients to Northern Ireland

(1) Section 81 above shall apply in the case of a community patient as it applies in the case of a patient who is for the time being liable to be detained under this Act, as if the community patient were so liable.

(2) Any reference in that section to the application, order or direction by virtue of which a patient is liable to be detained under this Act shall be construed, for these purposes, as a reference to the application, order or direction under this Act in respect of the patient. "

7 (1) Section 81A (transfer of responsibility for patients to Northern Ireland) is amended as follows.

(2) For subsection (1)(a) substitute--

" (a) is subject to a hospital order under section 37 above and a restriction order under section 41 above or to a transfer direction under section 47 above and a restriction direction under section 49 above; "

(3) In subsection (2)(b), for "a restriction order or restriction direction" substitute "a hospital order and a restriction order, or to a transfer direction and a restriction direction,".

8 In section 82 (removal to England and Wales of patients from Northern Ireland), in subsection (2), for the words from "where he is" to "the corresponding enactment" substitute "where he is subject to a hospital order and a restriction order or a transfer direction and a restriction direction under any enactment in that Order, as if he were subject to a hospital order and a restriction order or a transfer direction and a restriction direction under the corresponding enactment".

9 In section 82A (the title to which becomes "Transfer of responsibility for conditionally discharged patients to England and Wales from Northern Ireland), for subsection (2)(b) substitute--

" (b) as if he were subject to a hospital order under section 37 above and a restriction order under section 41 above or to a transfer direction under section 47 above and a restriction direction under section 49 above. "

Transfer of patients: Channel Islands and Isle of Man

10 Before section 83A (the title to which becomes "Transfer of responsibility for conditionally discharged patients to Channel Islands or Isle of Man") insert--

" 83ZA Removal or transfer of community patients to Channel Islands or Isle of Man

(1) Section 83 above shall apply in the case of a community patient as it applies in the case of a patient who is for the time being liable to be detained under this Act, as if the community patient were so liable.

(2) But if there are in force in any of the Channel Islands or the Isle of Man enactments ("relevant enactments") corresponding or similar to those relating to community patients in this Act--

(a) subsection (1) above shall not apply as regards that island; and

(b) subsections (3) to (6) below shall apply instead.

(3) If it appears to the appropriate national authority, in the case of a community patient, that the conditions mentioned in subsection (4) below are met, the authority may authorise the transfer of responsibility for him to the island in question.

(4) The conditions are--

(a) a transfer under subsection (3) above is in the patient's interests; and

(b) arrangements have been made for dealing with him under the relevant enactments.

(5) But the authority may not act under subsection (3) above while the patient is recalled to hospital under section 17E above.

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

(a) in relation to a community patient in respect of whom the responsible hospital is in England, the Secretary of State;

(b) in relation to a community patient in respect of whom the responsible hospital is in Wales, the Welsh Ministers. "

11 In section 85 (patients removed from Channel Islands or Isle of Man), in subsection (2), for "to a restriction order or restriction direction" substitute "to a hospital order and a restriction order or to a hospital direction and a limitation direction or to a transfer direction and a restriction direction".

12 Before section 85A (the title to which becomes "Responsibility for conditionally discharged patients transferred from Channel Islands or Isle of Man") insert--

" 85ZA Responsibility for community patients transferred from Channel Islands or Isle of Man

(1) This section shall have effect if there are in force in any of the Channel Islands or the Isle of Man enactments ("relevant enactments") corresponding or similar to those relating to community patients in this Act.

(2) If responsibility for a patient is transferred to England and Wales under a provision corresponding to section 83ZA(3) above, he shall be treated as if on the date of his arrival at the place where he is to reside in England or Wales--

(a) he had been admitted to the hospital in pursuance of an application made, or an order or direction made or given, on that date under the enactment in force in England and Wales which most closely corresponds to the relevant enactments; and

(b) a community treatment order had then been made discharging him from the hospital.

(3) "The responsible hospital", in his case, means the hospital to which he is treated as having been admitted by virtue of subsection (2) above, subject to section 19A above.

(4) As soon as practicable after the patient's arrival at the place where he is to reside in England or Wales, the responsible clinician shall specify the conditions to which he is to be subject for the purposes of section 17B(1) above, and the conditions shall be deemed to be specified in the community treatment order.

(5) But the responsible clinician may only specify conditions under subsection (4) above which an approved mental health professional agrees should be specified. "

13 (1) Section 85A is amended as follows.

(2) For subsection (2)(b) substitute--

" (b) as if he were subject to a hospital order under section 37 above and a restriction order under section 41 above, or to a hospital direction and a limitation direction under section 45A above, or to a transfer direction under section 47 above and a restriction direction under section 49 above. "

(3) In subsection (3) after "restriction order" insert ", limitation direction".

Patients absent from hospitals in England and Wales

14 (1) Section 88 (patients absent from hospitals in England and Wales) is amended as follows.

(2) In subsection (1) for the words from "any other part" to the end substitute "Northern Ireland".

(3) For subsection (2) substitute--

" (2) For the purposes of the enactments referred to in subsection (1) above in their application by virtue of this section, the expression "constable" includes an officer or constable of the Police Service of Northern Ireland. "

(4) In subsection (3) omit the following--

(a) the words "to Scotland or Northern Ireland",

(b) paragraph (a), and

(c) in paragraph (b), the words "in Northern Ireland,".

Regulations for purposes of Part 6

15 In section 90 (regulations for purposes of Part 6), for the words from "and to regulations" to the end substitute ", so far as this Part of this Act applies to patients removed to England and Wales or for whom responsibility is transferred to England and Wales."

General provisions as to patients removed from England and Wales

16 In section 91 (general provisions as to patients removed from England and Wales), after subsection (2) insert--

" (2A) Where responsibility for a community patient is transferred to a jurisdiction outside England and Wales (or such a patient is removed outside England and Wales) in pursuance of arrangements under this Part of this Act, the application, order or direction mentioned in subsection (1) above in force in respect of him shall cease to have effect on the date on which responsibility is so transferred (or he is so removed) in pursuance of those arrangements. "

Interpretation

17 In section 92 (interpretation of Part 6), after subsection (1) insert--

" (1A) References in this Part of this Act to the responsible clinician shall be construed as references to the responsible clinician within the meaning of Part 2 of this Act. "

Part 2 Related amendments

The 1983 Act

18 In section 69 of the 1983 Act (applications to tribunals concerning patients subject to hospital and guardianship orders), in subsection (2)(a)--

(a) after "hospital order" insert ", hospital direction", and

(b) for the words from ", 82(2) or" to the end substitute "or section 80B(2), 82(2) or 85(2) below."

19 (1) Section 79 of that Act (interpretation of Part 5) is amended as follows.

(2) In subsection (1), for paragraph (c) substitute--

" (c) is treated as subject to a hospital order and a restriction order, or to a hospital direction and a limitation direction, or to a transfer direction and a restriction direction, by virtue of any provision of Part 6 of this Act (except section 80D(3), 82A(2) or 85A(2) below), " .

(3) In subsection (5)--

(a) after "the relevant hospital order," insert "the relevant hospital direction,",

(b) after "the restriction order" insert ", the limitation direction",

(c) after "the hospital order," insert "hospital direction,", and

(d) after "restriction order," insert "limitation direction,".

(4) After that subsection insert--

" (5A) Section 75 above shall, subject to the modifications in subsection (5C) below, have effect in relation to a qualifying patient as it has effect in relation to a restricted patient who is conditionally discharged under section 42(2), 73 or 74 above.

(5B) A patient is a qualifying patient if he is treated by virtue of section 80D(3), 82A(2) or 85A(2) below as if he had been conditionally discharged and were subject to a hospital order and a restriction order, or to a hospital direction and a limitation direction, or to a transfer direction and a restriction direction.

(5C) The modifications mentioned in subsection (5A) above are--

(a) references to the relevant hospital order, hospital direction or transfer direction, or to the restriction order, limitation direction or restriction direction to which the patient is subject, shall be construed as references to the hospital order, hospital direction or transfer direction, or restriction order, limitation direction or restriction direction, to which the patient is treated as subject by virtue of section 80D(3), 82A(2) or 85A(2) below; and

(b) the reference to the date on which the patient was conditionally discharged shall be construed as a reference to the date on which he was treated as conditionally discharged by virtue of a provision mentioned in paragraph (a) above. "

20 (1) In section 146 (application to Scotland), omit the words from "88" to "138)".

(2) This paragraph does not extend to Scotland.

Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 (S.I. 2005/2078)

21 (1) The Mental Health (Care and Treatment) (Scotland) Act 2003 (Consequential Provisions) Order 2005 is amended as follows.

(2) Omit the following provisions--

(a) article 1(5),

(b) article 2, and

(c) article 3.

(3) In article 8 (the title to which becomes "Patients absent from hospitals or other places in Scotland"), in paragraph (1)(b), for "290" substitute "289, 290, 309, 309A".

(4) In article 12(2), for "2 to 11" substitute "4 to 11".

Section 48

SCHEDULE 6 Victims' rights

Introduction

1 Chapter 2 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 (c. 28) (provision of information to victims of restricted patients under the 1983 Act, etc.) is amended as set out in this Schedule.

Hospital orders (with or without restriction orders)

2 (1) Section 36 (victims' rights: preliminary) is amended as follows.

(2) In subsection (3), for "with a restriction order" substitute ", whether with or without a restriction order,".

(3) In subsection (5)--

(a) in paragraph (a), after "discharge from hospital" insert "while a restriction order is in force in respect of him", and

(b) after paragraph (b) insert " ;

"(c) what conditions he should be subject to in the event of his discharge from hospital under a community treatment order " .

3 After section 36 insert--

" 36A Supplemental provision for case where no restriction order made

(1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2) Subsection (3) applies if a person who appears to the local probation board mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 36(4), expresses a wish--

(a) to make representations about a matter specified in section 36(5), or

(b) to receive the information specified in section 36(6).

(3) The local probation board must--

(a) notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and

(b) notify that person of the name and address of the hospital.

(4) Subsection (5) applies if a person who appears to the local probation board mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 36(4), expresses a wish to do something specified in subsection (2)(a) or (b).

(5) The local probation board mentioned in section 36(4) must take all reasonable steps--

(a) to ascertain whether the hospital order made in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

(b) if the board ascertains that the hospital order does continue in force--

(i) to notify the managers of the relevant hospital of that person's wish, and

(ii) to notify that person of the name and address of the hospital.

(6) The relevant hospital is--

(a) the hospital in which the patient is detained, or

(b) if a community treatment order is in force in respect of the patient, the responsible hospital. "

4 In section 37 (the title to which becomes "Representations where restriction order made"), in subsection (1), for "if section 36 applies" substitute "if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order".

5 After section 37 insert--

" 37A Representations where restriction order not made

(1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2) Subsection (3) applies if--

(a) a person makes representations about a matter specified in section 36(5) to the managers of the relevant hospital, and

(b) it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

(3) The managers must forward the representations to the persons responsible for determining the matter.

(4) The responsible clinician must inform the managers of the relevant hospital if he is considering making--

(a) an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

(b) a community treatment order in respect of the patient, or

(c) an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

(5) Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order.

(6) A Mental Health Review Tribunal must inform the managers of the relevant hospital if--

(a) an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

(b) the patient's case is referred to the tribunal under section 67 of that Act.

(7) Subsection (8) applies if--

(a) the managers of the relevant hospital receive information under subsection (4), (5) or (6), and

(b) a person who appears to the managers to be the victim of the offence or to act for the victim of the offence--

(i) when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5), or

(ii) has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

(8) The managers of the relevant hospital must provide the information to the person.

(9) The relevant hospital has the meaning given in section 36A(6). "

6 In section 38 (the title to which becomes "Information where restriction order made"), in subsection (1) for "if section 36 applies" substitute "if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order".

7 After section 38 insert --

" 38A Information where restriction order not made

(1) This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2) The responsible clinician must inform the managers of the relevant hospital--

(a) whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

(b) whether he is to make a community treatment order in respect of the patient;

(c) if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

(d) if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

(e) if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

(f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire.

(3) Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order.

(4) Subsection (5) applies if--

(a) an application is made to a Mental Health Review Tribunal under section 66 or 69 of the Mental Health Act 1983,

(b) the patient's case is referred to a Mental Health Review Tribunal under section 67 of that Act, or

(c) the managers of the relevant hospital refer the patient's case to a Mental Health Review Tribunal under section 68 of that Act.

(5) The tribunal must inform the managers of the relevant hospital if it directs that the patient is to be discharged.

(6) Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence--

(a) when his wishes were ascertained under section 36(4), expressed a wish to receive the information specified in section 36(6), or

(b) has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

(7) The managers of the relevant hospital order must take all reasonable steps--

(a) to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

(b) to inform that person whether a community treatment order is to be made in respect of the patient;

(c) if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

(d) if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

(e) if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

(f) if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire;

(g) to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

(8) The relevant hospital has the meaning given by section 36A(6).

38B Removal of restriction

(1) This section applies if, in a case where section 36 applies--

(a) the hospital order in respect of the patient was made with a restriction order, and

(b) the restriction order ceases to have effect while the hospital order continues in force.

(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence--

(a) when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5) or to receive the information specified in section 36(6), or

(b) has subsequently informed the relevant local probation board that he wishes to make representations about such a matter or to receive that information.

(3) The relevant local probation board must take all reasonable steps--

(a) to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b) to notify that person of the name and address of the hospital.

(4) While the hospital order continues in force, the patient is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

(5) The relevant hospital has the meaning given in section 36A(6).

(6) The relevant local probation board has the meaning given in section 37(8). "

Hospital directions and limitation directions

8 In section 39 (victims' rights: preliminary), in subsection (3)--

(a) in paragraph (a), after "discharge from hospital" insert "while he is subject to a limitation direction", and

(b) after that paragraph insert--

" (aa) what conditions he should be subject to in the event of his discharge from hospital under a community treatment order; " .

9 After section 41 insert--

" 41A Removal of restriction

(1) This section applies if, in a case where section 39 applies--

(a) the limitation direction in respect of the offender ceases to be in force, and

(b) he is treated for the purposes of the Mental Health Act 1983 as a patient in respect of whom a hospital order has effect.

(2) Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence--

(a) when his wishes were ascertained under section 39(2), expressed a wish to make representations about a matter specified in section 39(3) or to receive the information specified in section 39(4), or

(b) has subsequently informed the relevant local probation board that he wishes to make representations about such a matter or to receive that information.

(3) The relevant local probation board must take all reasonable steps--

(a) to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b) to notify that person of the address of the hospital.

(4) The offender is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

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