Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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(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.

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

(6) The relevant local probation board has the meaning given in section 40(8). "

Transfer directions (with or without restriction directions)

10 (1) Section 42 (victims' rights: preliminary) is amended as follows.

(2) In subsection (1)(c), for "and a restriction direction in respect of him" substitute "in respect of the offender (whether or not he also gives a restriction direction in respect of the offender)".

(3) In subsection (3)--

(a) in paragraph (a), after "discharge from hospital" insert "at a time when a restriction direction 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 " .

11 After section 42 insert--

" 42A Supplemental provision for case where no restriction direction given

(1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2) Subsection (3) applies if a person who appears to the local probation board mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 42(2), expresses a wish--

(a) to make representations about a matter specified in section 42(3), or

(b) to receive the information specified in section 42(4).

(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 42(2) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 42(2), expressed a wish to do something specified in subsection (2)(a) or (b).

(5) The local probation board mentioned in section 42(2) must take all reasonable steps--

(a) to ascertain whether the transfer direction given 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 transfer direction 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 has the meaning given in section 36A(6). "

12 In section 43 (the title to which becomes "Representations where restriction direction made"), in subsection (1), for "if section 42 applies" substitute "if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction".

13 After section 43 insert--

" 43A Representations where restriction direction not given

(1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2) Subsection (3) applies if--

(a) a person makes representations about a matter specified in section 42(3) 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 him, 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 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 42(2), expressed a wish to make representations about a matter specified in section 42(3), 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). "

14 In section 44 (the title to which becomes "Information where restriction direction made"), in subsection (1), for "if section 42 applies" substitute "if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction".

15 After section 44 insert --

" 44A Information where restriction direction not given

(1) This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(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 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 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 42(2), expressed a wish to receive the information specified in section 42(4), 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).

44B Removal of restriction

(1) This section applies if, in a case where section 42 applies--

(a) the transfer direction in respect of the patient was given with a restriction direction, and

(b) the restriction direction ceases to be in force while the transfer direction 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 42(2), expressed a wish to make representations about a matter specified in section 42(3) or to receive the information specified in section 42(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 name and address of the hospital.

(4) While the transfer direction continues in force, the patient is to be regarded as a patient in respect of whom a transfer direction was given without a restriction direction; and sections 43A and 44A 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 43(8). "

Interpretation

16 (1) Section 45 (the title to which becomes "Interpretation: sections 35 to 44B") is amended as follows.

(2) In subsection (1)--

(a) for "44" substitute "44B", and

(b) at the appropriate places insert--

" "community treatment order" has the meaning given in section 17A of the Mental Health Act 1983; " ,

" "the managers" has the meaning given in section 145 of the Mental Health Act 1983; " ,

" "responsible clinician" means the responsible clinician for the purposes of Part 3 of the Mental Health Act 1983; " , and

" "responsible hospital" has the meaning given in section 17A of the Mental Health Act 1983; " .

(3) In subsection (2), for "44" substitute "44B".

(4) After subsection (2) insert--

" (3) A reference in sections 35 to 44B to a place in which a person is detained includes a reference to a place in which he is liable to be detained under the Mental Health Act 1983.

(4) For the purposes of section 32(3) of that Act (regulations as to delegation of managers' functions, etc.) as applied by Parts 1 and 2 of Schedule 1 to that Act, a function conferred on the managers of a hospital under sections 35 to 44B of this Act is to be treated as a function of theirs under Part 3 of that Act. "

Section 50

SCHEDULE 7 Mental Capacity Act 2005: new Schedule A1

Before Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert--

" SCHEDULE A1 Hospital and care home residents: deprivation of liberty

Part 1 Authorisation to deprive residents of liberty etc

Application of Part

1 (1) This Part applies if the following conditions are met.

(2) The first condition is that a person ("P") is detained in a hospital or care home -- for the purpose of being given care or treatment -- in circumstances which amount to deprivation of the person's liberty.

(3) The second condition is that a standard or urgent authorisation is in force.

(4) The third condition is that the standard or urgent authorisation relates--

(a) to P, and

(b) to the hospital or care home in which P is detained.

Authorisation to deprive P of liberty

2 The managing authority of the hospital or care home may deprive P of his liberty by detaining him as mentioned in paragraph 1(2).

No liability for acts done for purpose of depriving P of liberty

3 (1) This paragraph applies to any act which a person ("D") does for the purpose of detaining P as mentioned in paragraph 1(2).

(2) D does not incur any liability in relation to the act that he would not have incurred if P--

(a) had had capacity to consent in relation to D's doing the act, and

(b) had consented to D's doing the act.

No protection for negligent acts etc

4 (1) Paragraphs 2 and 3 do not exclude a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing any thing.

(2) Paragraphs 2 and 3 do not authorise a person to do anything otherwise than for the purpose of the standard or urgent authorisation that is in force.

(3) In a case where a standard authorisation is in force, paragraphs 2 and 3 do not authorise a person to do anything which does not comply with the conditions (if any) included in the authorisation.

Part 2 Interpretation: main terms

Introduction

5 This Part applies for the purposes of this Schedule.

Detained resident

6 "Detained resident" means a person detained in a hospital or care home -- for the purpose of being given care or treatment -- in circumstances which amount to deprivation of the person's liberty.

Relevant person etc

7 In relation to a person who is, or is to be, a detained resident--

"relevant person" means the person in question;
"relevant hospital or care home" means the hospital or care home in question;
"relevant care or treatment" means the care or treatment in question.

Authorisations

8 "Standard authorisation" means an authorisation given under Part 4.

9 "Urgent authorisation" means an authorisation given under Part 5.

10 "Authorisation under this Schedule" means either of the following--

(a) a standard authorisation;

(b) an urgent authorisation.

11 (1) The purpose of a standard authorisation is the purpose which is stated in the authorisation in accordance with paragraph 55(1)(d).

(2) The purpose of an urgent authorisation is the purpose which is stated in the authorisation in accordance with paragraph 80(d).

Part 3 The qualifying requirements

The qualifying requirements

12 (1) These are the qualifying requirements referred to in this Schedule--

(a) the age requirement;

(b) the mental health requirement;

(d) the best interests requirement;

(e) the eligibility requirement;

(f) the no refusals requirement.

(2) Any question of whether a person who is, or is to be, a detained resident meets the qualifying requirements is to be determined in accordance with this Part.

(3) In a case where--

(a) the question of whether a person meets a particular qualifying requirement arises in relation to the giving of a standard authorisation, and

(b) any circumstances relevant to determining that question are expected to change between the time when the determination is made and the time when the authorisation is expected to come into force,

those circumstances are to be taken into account as they are expected to be at the later time.

The age requirement

13 The relevant person meets the age requirement if he has reached 18.

The mental health requirement

14 (1) The relevant person meets the mental health requirement if he is suffering from mental disorder (within the meaning of the Mental Health Act, but disregarding any exclusion for persons with learning disability).

(2) An exclusion for persons with learning disability is any provision of the Mental Health Act which provides for a person with learning disability not to be regarded as suffering from mental disorder for one or more purposes of that Act.

The mental capacity requirement

15 The relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.

The best interests requirement

16 (1) The relevant person meets the best interests requirement if all of the following conditions are met.

(2) The first condition is that the relevant person is, or is to be, a detained resident.

(3) The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(4) The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.

(5) The fourth condition is that it is a proportionate response to--

(a) the likelihood of the relevant person suffering harm, and

(b) the seriousness of that harm,

for him to be a detained resident.

The eligibility requirement

17 (1) The relevant person meets the eligibility requirement unless he is ineligible to be deprived of liberty by this Act.

(2) Schedule 1A applies for the purpose of determining whether or not P is ineligible to be deprived of liberty by this Act.

The no refusals requirement

18 The relevant person meets the no refusals requirement unless there is a refusal within the meaning of paragraph 19 or 20.

19 (1) There is a refusal if these conditions are met--

(a) the relevant person has made an advance decision;

(b) the advance decision is valid;

(2) Expressions used in this paragraph and any of sections 24, 25 or 26 have the same meaning in this paragraph as in that section.

20 (1) There is a refusal if it would be in conflict with a valid decision of a donee or deputy for the relevant person to be accommodated in the relevant hospital or care home for the purpose of receiving some or all of the relevant care or treatment--

(a) in circumstances which amount to deprivation of the person's liberty, or

(b) at all.

(2) A donee is a donee of a lasting power of attorney granted by the relevant person.

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

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

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

Part 4 Standard authorisations

Supervisory body to give authorisation

21 Only the supervisory body may give a standard authorisation.

22 The supervisory body may not give a standard authorisation unless--

(a) the managing authority of the relevant hospital or care home have requested it, or

(b) paragraph 71 applies (right of third party to require consideration of whether authorisation needed).

23 The managing authority may not make a request for a standard authorisation unless--

(a) they are required to do so by paragraph 24 (as read with paragraphs 27 to 29),

(b) they are required to do so by paragraph 25 (as read with paragraph 28), or

Duty to request authorisation: basic cases

24 (1) The managing authority must request a standard authorisation in any of the following cases.

(2) The first case is where it appears to the managing authority that the relevant person--

(a) is not yet accommodated in the relevant hospital or care home,

(b) is likely -- at some time within the next 28 days -- to be a detained resident in the relevant hospital or care home, and

(i) at that time, or

(ii) at some later time within the next 28 days,

to meet all of the qualifying requirements.

(3) The second case is where it appears to the managing authority that the relevant person--

(a) is already accommodated in the relevant hospital or care home,

(b) is likely -- at some time within the next 28 days -- to be a detained resident in the relevant hospital or care home, and

(i) at that time, or

(ii) at some later time within the next 28 days,

to meet all of the qualifying requirements.

(4) The third case is where it appears to the managing authority that the relevant person--

(a) is a detained resident in the relevant hospital or care home, and

(b) meets all of the qualifying requirements, or is likely to do so at some time within the next 28 days.

(5) This paragraph is subject to paragraphs 27 to 29.

Duty to request authorisation: change in place of detention

25 (1) The relevant managing authority must request a standard authorisation if it appears to them that these conditions are met.

(2) The first condition is that a standard authorisation--

(a) has been given, and

(b) has not ceased to be in force.

(3) The second condition is that there is, or is to be, a change in the place of detention.

(4) This paragraph is subject to paragraph 28.

26 (1) This paragraph applies for the purposes of paragraph 25.

(2) There is a change in the place of detention if the relevant person--

(a) ceases to be a detained resident in the stated hospital or care home, and

(b) becomes a detained resident in a different hospital or care home ("the new hospital or care home").

(3) The stated hospital or care home is the hospital or care home to which the standard authorisation relates.

(4) The relevant managing authority are the managing authority of the new hospital or care home.

Other authority for detention: request for authorisation

27 (1) This paragraph applies if, by virtue of section 4A(3), a decision of the court authorises the relevant person to be a detained resident.

(2) Paragraph 24 does not require a request for a standard authorisation to be made in relation to that detention unless these conditions are met.

(3) The first condition is that the standard authorisation would be in force at a time immediately after the expiry of the other authority.

(4) The second condition is that the standard authorisation would not be in force at any time on or before the expiry of the other authority.

(5) The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the other authority.

(6) In this paragraph--

(a) the other authority is--

(i) the decision mentioned in sub-paragraph (1), or

(ii) any further decision of the court which, by virtue of section 4A(3), authorises, or is expected to authorise, the relevant person to be a detained resident;

(b) the expiry of the other authority is the time when the other authority is expected to cease to authorise the relevant person to be a detained resident.

Request refused: no further request unless change of circumstances

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