Section 8: The fundamental principles

41. Section 8 amends section 118 of the 1983 Act to insert new subsections (2A) to (2D) into the existing provision regarding the requirement to have a Mental Health Act Code of Practice.

42. The new subsection (2A) requires the Secretary of State to include in the Code of Practice a statement of principles that he or she thinks should inform decisions made under the 1983 Act.

43. New subsection (2B) contains a list of issues that the Secretary of State must ensure are addressed in the statement of principles when preparing it. Under new subsection (2C) the Secretary of State must also have regard to the desirability of ensuring the efficient use of resources and the equitable distribution of services.

44. The responsibility for preparing and revising the Code of Practice in relation to Wales was transferred to the National Assembly for Wales, but, by virtue of the Government of Wales Act 2006, this function transferred to and is now exercisable by the Welsh Ministers.

45. New subsection (2D) provides that the people listed in section 118(1)(a) and (b) shall have regard to the Code of Practice. This is to confirm in statute the status of the Code of Practice, as elaborated on by the House of Lords in the case of R v Ashworth Hospital Authority (now Mersey Care National Health Service Trust) ex parte Munjaz [2005] UKHL 58. Those people listed in section 118(1)(a) and (b) (as amended by the 2007 Act) are registered medical practitioners, approved clinicians, managers and staff of hospitals, independent hospitals and care homes, and approved mental health professionals dealing with patients admitted to hospital, or subject to guardianship or SCT under the 1983 Act; and registered medical practitioners and members of other professions dealing with patients suffering from a mental disorder.

CHAPTER 2 - PROFESSIONAL ROLES

Overview

46. Chapter 2 provides for roles which are central to the operation of the 1983 Act potentially to be performed by a wider range of professionals than at present. In particular, it replaces the role of the "responsible medical officer" (RMO) with that of the "responsible clinician" (RC) and the role of the "approved social worker" (ASW) with that of the "approved mental health professional" (AMHP).

47. Under the 1983 Act, the RMO is the registered medical practitioner in charge of the treatment of the patient. As such, the RMO has various designated functions, including deciding when patients can be discharged and allowed out on leave. The identity of the RMO is a question of fact in the circumstances (except in respect of guardianship where the RMO is the person appointed as such by the local social services authority (LSSA)). In practice, RMOs are usually consultant psychiatrists.

48. By contrast, the RC may be any practitioner who has been approved for that purpose (an "approved clinician" (AC) - see below). Approval need not be restricted to medical practitioners, and may be extended to practitioners from other professions, such as nursing, psychology, occupational therapy and social work. RCs will take over most of the functions of RMOs, although some functions currently reserved to RMOs may be taken instead by another AC, not just the RC. RCs will also have certain new functions in relation to SCT (see section 32 below).

49. Similarly, Chapter 2 replaces the ASW with the AMHP. Under section 114 of the 1983 Act, an LSSA is required to appoint a sufficient number of ASWs to carry out key functions. These include making applications to admit patients for assessment, treatment or guardianship.

50. AMHPs will take on the functions of the ASWs, including the function of making applications for admission and detention in hospital under Part 2 of the 1983 Act. Like RCs, they are also to have certain new functions in relation to SCT (see section 32 below). As well as social workers, a wider group of professionals, for example nurses, occupational therapists and psychologists, will potentially be eligible for approval as AMHPs as long as individuals have the right skills, experience and training. The appropriate national authority will set out approval criteria in regulations (see section 18 below).

Section 9: Amendments to Part 2 of 1983 Act

51. Section 9 makes a number of amendments to Part 2 of the 1983 Act (compulsory admission to hospital and guardianship) to substitute the RC for the RMO. It defines the RC, where the patient is liable to be detained or a community patient, as the AC with overall responsibility for the patient's case. Where the patient is subject to guardianship, the RC is defined as the AC authorised by the responsible local social services authority to act (either generally or in amy particular case or for any particular purpose) as the RC.

52. The RC will be responsible for renewing a patient's detention. Section 9 will insert a provision into section 20 of the 1983 Act requiring the RC to gain the agreement of another person that the conditions for renewal are met before furnishing a renewal report. The other person must have been professionally concerned with the patient's medical treatment and be of a different profession to the responsible clinician.

53. Section 9 also amends section 5(2) and (3) of the 1983 Act so that an AC, in addition to a registered medical practitioner, may hold an inpatient for up to 72 hours from the time a report is furnished to the hospital managers if the AC thinks an application for admission under the Act should be made.

Section 10: Amendments to Part 3 of 1983 Act

54. Section 10 makes similar amendments to Part 3 of the 1983 Act (patients concerned in criminal proceedings etc). It also provides that certain functions currently restricted to registered medical practitioners (who need not be RMOs) will in future be exercisable as well, or instead, by ACs. For example, it will be possible for an AC as well as any registered medical practitioner to be responsible for the report on the medical condition of a person remanded to hospital for that purpose under section 35 of the 1983 Act. Section 10 of the 2007 Act does not, however, change the requirements for courts to have evidence from registered medical practitioners before deciding to impose a hospital order or make other orders or remands under Part 3.

Section 11: Further amendments to Part 3 of 1983 Act

55. Section 11 makes further similar amendments to Part 3 of the 1983 Act (patients concerned in criminal proceedings etc). As well as replacing references to RMOs with RCs, it provides that certain functions restricted to registered medical practitioners may be exercised instead by ACs. For example, under section 50(1), the Secretary of State (in effect the Secretary of State for Justice) will be able to return a patient subject to a restricted transfer direction under section 47 to prison, or exercise certain powers in relation to the person's release, if he or she is notified either by the patient's RC or another AC (rather than only another registered medical practitioner) that the patient no longer needs treatment in hospital or appropriate treatment is no longer available.

Section 12: Amendments to Part 4 of 1983 Act

56. Section 12 makes similar amendments to Part 4 of the 1983 Act (consent to treatment). In particular, it amends sections 57, 58 and 63. Section 57 concerns treatment that requires the patient's consent and a second opinion (such as "psychosurgery"). Section 58 concerns treatment requiring the patient's consent or a second opinion. Section 63 covers treatment that can be imposed without the patient's consent (such as medication within the first 3 months and nursing care).

57. The section amends the provisions of Part 4 so that the AC or other person in charge of the treatment in question has the functions previously held by the RMO, for example signing a certificate to say that a patient is capable and willing to consent to the treatment. In the majority of cases the AC in charge of the treatment will be the patient's RC, but where, for example, the RC is not qualified to make decisions about a particular treatment (e.g. medication if the RC is not a doctor or a nurse prescriber) then another appropriately qualified professional will be in charge of that treatment, with the RC continuing to retain overall responsibility for the patient's case.

58. Section 12 also makes provision about who may perform functions under Part 4. In particular, it recognises that some patients receiving treatment under section 57 (e.g. informal patients) will not have a responsible clinician or an approved clinician in charge of their treatment. Section 12 also amends Part 4 of the 1983 Act so that the patient's RC (if they have one) and the person in charge of their treatment (if they are a different person) are excluded from being the registered medical practitioner to give the second opinion required by sections 57 and 58 (the SOAD). It also prevents these professionals from being one of the persons the SOAD has a statutory duty to consult. This is to ensure that there is an independent assessment of whether treatment should be given.

Section 13: Amendments to Part 5 of 1983 Act

59. Section 13 makes similar amendments to Part 5 of the 1983 Act (Mental Health Review Tribunals). For example, it amends sections 67(2) and 76(1) so that an AC as well as a registered medical practitioner can visit and examine the patient for the purposes of a tribunal reference and tribunal application under those provisions.

Section 14: Amendments to other provisions of 1983 Act

60. Section 14 makes related amendments to other provisions of the 1983 Act. It amends section 118 so that the Code of Practice will also be for the guidance of ACs. It also inserts into section 145 a definition of an AC. The Secretary of State and the Welsh Ministers will have the function of approving persons to be approved clinicians in relation to England and Wales respectively. It is expected that this function will be delegated to appropriate NHS bodies. The professions whose members may be approved and the type of skill and experience required will be set out in directions issued by the Secretary of State and the Welsh Ministers respectively.

Section 15: Amendments to other Acts

61. Section 15 makes consequential amendments to the Army Act 1955, the Air Force Act 1955, the Naval Discipline Act 1957, the Criminal Procedure (Insanity) Act 1964 and the Armed Forces Act 2006 to replace the term "responsible medical officer" with the term "responsible clinician", where it is mentioned in those Acts.

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

62. Section 16 amends section 12 of the 1983 Act so that a registered medical practitioner who has been approved as an AC is also approved for the purposes of section 12. Under section 12 of the 1983 Act, at least one of the two doctors recommending detention must be a practitioner who has been approved by the Secretary of State as having special experience in the diagnosis or treatment of mental disorder (in relation to Wales the function of approving practitioners is exercisable by the Welsh Ministers). It is expected that the competencies a registered medical practitioner will require in order to be approved as an AC will be such that they will have the "special experience in the diagnosis or treatment of mental disorder" required for section 12 approval. ACs who are not registered medical practitioners will not be deemed to be section 12 approved.

Section 17: Regulations as to approvals in relation to England and Wales

63. Section 17 inserts a new section 142A into the 1983 Act, which gives the Secretary of State, jointly with Welsh Ministers, the power to set out in regulations the circumstances in which approval in England under section 12 of the 1983 Act and approval as an AC should be considered to mean approval in Wales as well, and vice versa.

Section 18: Approved mental health professionals

64. Section 18 substitutes section 114 of the 1983 Act. It replaces the role of ASWs with that of AMHPs. This will mean that a wider group of professionals, such as nurses, occupational therapists and chartered psychologists will be able to carry out the ASW's functions as long as individuals have the right skills, experience and training, and are approved by an LSSA to do so. A registered medical practitioner is specifically prohibited from being approved to act as an AMHP. This means that there will be a mix of professional perspectives at the point in time when a decision is being made regarding a patient's detention. This does not prevent all those involved from being employed by the NHS, but the skills and training required of AMHPs aim to ensure that they provide an independent social perspective.

65. The definition of an ASW in section 145(1) of the 1983 Act is replaced by the definition of an AMHP in section 114 (see paragraph 11 of Schedule 2). Unlike with ASWs, there is now no requirement that an AMHP be an officer (employee) of an LSSA.

66. LSSAs will approve AMHPs. Before doing so they must be satisfied that the individual has appropriate competence in dealing with persons who are suffering from mental disorder and complies with regulations setting out conditions for approval, factors as to competency, and requirements for training.

67. There will be separate regulations for England and Wales, which may contain different approval criteria. Therefore, an AMHP approved by an LSSA in England may only act on behalf of an English LSSA, and an AMHP approved by a Welsh LSSA may only act on behalf of a Welsh LSSA. This means a Welsh LSSA cannot arrange for an English-approved AMHP to act on their behalf and vice versa. However, it does not mean that a Welsh-approved AMHP cannot make an application to admit a patient in England or convey a patient in England and vice versa. It is also possible for an AMHP with the appropriate competencies to be approved in both territories.

Section 19: Approval of courses etc for approved mental health professionals

68. Section 19 inserts a new section 114A into the 1983 Act in relation to the approval of courses for AMHPs. This allows the General Social Care Council (GSCC) and the Care Council for Wales (CCfW), which are the statutory bodies set up to regulate the social work profession, to approve courses for the training of English and Welsh AMHPs respectively, regardless of the trainees' profession. To ensure that AMHPs from different professional backgrounds continue to be regulated by their own professional bodies, section 114A(4) states that the functions of an approved mental health professional shall not be considered to be "relevant social work" for the purposes of Part 4 of the Care Standards Act 2000. Part 4 of the Care Standards Act 2000 requires the GSCC and CCfW to provide codes of practice for social care workers, which includes "a person who engages in relevant social work". "Relevant social work" is defined as "social work which is required in connection with any health, education or social services provided by any person". Making clear that AMHP functions are not "relevant social work" for the purposes of Part 4 of the Care Standards Act means that the GSCC's and CCfW's codes of practice do not apply to AMHPs who are not social workers.

Section 20: Amendments to section 62 of Care Standards Act 2000

69. Although AMHP functions are not to be considered "relevant social work" for the purposes of Part 4 of the Care Standards Act 2000, section 20 provides that the GSCC's and CCfW's codes of practice will continue to apply to social workers when carrying out AMHP functions.

Section 21: Approved mental health professionals: further amendments and Schedule 2

70. Section 21 introduces Schedule 2 which makes further amendments to the 1983 Act in relation to ASWs.

71. ASWs are responsible for assessing whether an application for a patient's admission under Part 2 of the 1983 Act should be made (unless the application is made by the patient's nearest relative). They arrange and co-ordinate the assessment, taking into account all factors to determine if detention in hospital is the best option for a patient or if there is a less restrictive alternative. The 2007 Act allows assessments for admission to be undertaken by an AMHP, who might, for example, be a nurse, occupational therapist or chartered psychologist, as well as a social worker.

72. Paragraph 5 of Schedule 2 amongst other things amends section 13(1) of the 1983 Act so that LSSAs who have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area shall have a duty to arrange for an AMHP to consider the patient's case on their behalf. Where a patient is detained for assessment under section 2, and the LSSA that arranged for an AMHP to consider that admission has reason to think that an application for treatment may be needed under section 3, new subsections (1B) and (1C) of section 13 place a duty on that LSSA to arrange for an AMHP to consider the patient's case on their behalf even where the patient is no longer in the area of that authority. The duties under sections 13(1), (1B) and (1C) do not prevent another LSSA from arranging for an AMHP to consider a patient's case. Subsection (5) of section 13, as amended by paragraph 5(6) of Schedule 2, makes clear that any other LSSA also has the power to do so. The effect of the amendments to section 13 is to provide for LSSAs to continue to have a role in ensuring that there is an adequate AMHP service, whether they choose to run the AMHP service themselves or enter into agreements with other LSSAs and/or NHS organisations to do so.

73. Because AMHPs will no longer always be employed by a LSSA, section 145 of the 1983 Act is amended to provide in new subsection (1AC) that references to an AMHP in the 1983 Act are generally to be read as an AMHP carrying out their functions on behalf of a LSSA. This is to retain the link between the AMHP and an LSSA even though the AMHP no longer needs to be employed by an LSSA.

Section 22: Conflicts of interest

74. Section 22 introduces a power to enable regulations to be made by the Secretary of State in respect of England and the Welsh Ministers in respect of Wales setting out when, because of a potential conflict of interest:

• an AMHP may not make an application for admission to hospital or guardianship under section 2, 3 or 7 of the 1983 Act; or

• a medical practitioner may not provide a medical recommendation accompanying such an application.

75. The power replaces the provisions of section 12(3) to (7) of the 1983 Act, which set out when a medical practitioner may not provide a medical recommendation in support of an application, because of their position either in relation to the applicant, the patient or the other practitioner providing a medical recommendation.

CHAPTER 3 - SAFEGUARDS FOR PATIENTS

Sections 23-26: Patient's nearest relative

76. Sections 26-29 of the 1983 Act provide for the role of the nearest relative (NR) of patients. The 1983 Act provides a list of persons who may act in this role: the person appointed usually being the highest in that list, starting with any spouse or, if there is none, the eldest son or daughter, and so on. The NR has certain rights in connection with the care and treatment of a mentally disordered patient under the 1983 Act, including the right to apply for admission to hospital, the right to block an admission for treatment, the right to discharge a patient from compulsion and the right to certain information about the patient. NRs may not exercise their rights in respect of patients subject to special restrictions under Part 3 of the 1983 Act.

77. Section 23 introduces a new right for a patient to apply for an order displacing the NR on the same grounds available to other applicants under the 1983 Act as it stands, and on the additional ground that the NR is unsuitable to act as such. The table below summarises possible grounds for applications and who may make them. The provision also amends the basis upon which a court may make such an order. It changes the requirement that the acting NR be, in the court's opinion, a "proper person" to act as the NR to a requirement that the person is, in the court's opinion, a "suitable" person to act. Section 23 also amends section 29 of the 1983 Act to provide that where the person nominated by the applicant is, in the court's opinion, not "suitable" or there is no nomination, the court can appoint any other person it thinks is "suitable".

78. In this way, an NR who has, for example, in the past subjected a patient to physical abuse, may, upon application to the court by the patient, be removed from exercising the rights of the NR by order of the court. In the application, the patient can nominate another person to act as the NR. Unless the court finds that person to be unsuitable, or decides not to displace the current NR, the person will be made the acting NR.

79. An application for displacement can also be made by an AMHP, another relative or anyone living with the patient (or if the patient is an in-patient in a hospital, anyone with whom the patient was living before he was admitted). So long as the court orders the displacement of the current NR, then whomever the applicant nominates will be made the acting NR, unless the court finds that person to be unsuitable to act as such.

80. Section 24 introduces a new right for the patient to apply to discharge - or vary - an order appointing an acting NR. A NR displaced under the new ground will also be able to apply for such an order, but the NR must first obtain leave of the court. The court can currently appoint an acting NR only for a limited period; section 24 will allow the court to make an appointment for an indefinite period.

81. A person who has been made the acting NR retains the right to apply to have that order ended. The order displacing the NR - and appointing an acting NR - continues even when the displaced NR ceases to be the first person in the list of relatives. In these circumstances, the patient can apply to have the court order discharged. The new person at the top of the list will then become the NR.

82. A NR displaced on the new grounds that he is unsuitable to act as such can apply for the discharge of the order which displaced him as NR. However, the application will only be heard if the court first agrees. Spurious or malicious applications can therefore be stopped before the patient is brought into the process.

83. Section 25 will limit applications to the MHRT from displaced NRs, to those NRs displaced on grounds set out in sections 29(3)(c) or 29(3)(d) of the 1983 Act (see table above). A person who has been displaced as the NR because he or she is too ill to act, or unsuitable to act, will not have the right to apply to the MHRT.

84. Section 26 amends the list in sections 26 and 27 of the 1983 Act of those persons who may act in the role of NR of a patient, by giving a civil partner equal status to a husband or wife.

Sections 27-31: Consent to treatment

Overview of consent to treatment provisions in the 1983 Act

85. Part 4 of the 1983 Act deals with the medical treatment of patients, other than (for most purposes) patients subject to a community treatment order (a CTO) who have not been recalled to hospital. Treatment of such patients is generally dealt with under Part 4A. See section 32 below for an explanation of a CTO.

86. Section 57 of the 1983 Act provides that certain treatments may not be given to any patient for mental disorder (whether or not they are otherwise subject to the 1983 Act) unless the patient consents, a SOAD and two other people appointed by the Mental Health Act Commission (MHAC) have certified that the patient is capable of giving that consent (and has done so), and the SOAD has additionally certified that the treatment should be given. The treatments in question are any surgical operation for destroying brain tissue or its functioning (sometimes called "psychosurgery") and, by virtue of regulations under subsection (1)(b) of section 57, surgical implantation of hormones for the purpose of reducing male sex drive (a procedure which is no longer used).

87. Section 58 of the 1983 Act provides that patients who are liable to be detained under the 1983 Act (subject to certain exclusions set out in section 56) may not, in general, be given certain treatments unless they consent and that consent is certified by their RMO (in future the AC in charge of the treatment) or a SOAD, or alternatively, unless a SOAD certifies that they either cannot or will not consent to the treatment, but that it should nonetheless be given. Section 34 of the 2007 Act also applies section 58 to patients who are subject to a CTO and who have been recalled to hospital (subject to certain exceptions).

88. Section 58 of the 1983 Act also applies to the administration of medication once three months have passed since the patient was first given medication while detained - or, in future, subject to a CTO - under the Act. At present and by virtue of regulations under subsection (1)(a), it also applies to electro-convulsive therapy (ECT), without any initial period however this will be overtaken by the amendments made by section 27 of the 2007 Act (see below).

89. Sections 57 and 58 are subject to the following sections of the 1983 Act:

• section 59, which provides that consent or a certificate under either of those sections may relate to a plan of treatment instead of an individual treatment

• section 60, which provides that a patient who withdraws consent to treatment or to all or any part of a plan of treatment, is to be treated from that point onwards as being someone who does not consent to the treatment(s) in question

• section 61, which imposes requirements on RMOs (in future the AC in charge of treatment) to report to the Secretary of State (in practice MHAC) on treatment given on the basis of a SOAD certificate and permits the Secretary of State (MHAC) to withdraw such a certificate

• section 62, which dis-applies sections 57 and 58 where treatment is immediately necessary and meets certain criteria, and in certain cases where the discontinuance of treatment would cause the patient serious suffering.

90. Section 63 of the 1983 Act provides that patients liable to be detained (and not excluded by section 56) may be treated by or under the direction of their RMO (in future the AC in charge of the treatment) without their consent, where the treatment concerned is not one to which sections 57 or 58 apply.