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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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”.
| Possible grounds for an application | ||||||
|---|---|---|---|---|---|---|
| 29(3)(a) – the patient has no NR | 29(3)(b) – the NR is too ill to act | 29(3)(c) – the NR unreasonably blocks admission | 29(3)(d) – the NR has or is likely to discharge the patient without due regard | 29(3)(e) – the NR is unsuitable to act as such | ||
| Possible applicants | AMHP replacing ASW | Currently provided for | Currently provided for | Currently provided for | Currently provided for | New provision |
| Relative | Currently provided for | Currently provided for | Currently provided for | Currently provided for | New provision | |
| Someone living with the patient | Currently provided for | Currently provided for | Currently provided for | Currently provided for | New provision | |
| Patient | New provision | New provision | New provision | New provision | New provision |
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.
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.
91.Section 27 inserts a new section 58A into the 1983 Act. That new section provides that ECT and any other treatment provided for by regulations made under subsection (1)(b), can only be given when the patient either gives consent, or is incapable of giving consent. This provision is subject to the provisions about emergency treatment in section 62 of the 1983 Act (as amended by section 28 of the 2007 Act). This is to ensure that a patient, including one who is not consenting, can still receive treatment in the urgent circumstances set out in section 62 if there is insufficient time to apply the requirements at section 58A.
92.Where a detained patient 18 years of age or older consents to treatment with ECT (or any other treatment provided for by regulations), that consent must be certified by either the AC in charge of the patient’s treatment or a SOAD. Where a child patient under 18 years of age who is either a detained patient or an informal patient who is not subject to a CTO consents to such treatment, a SOAD must certify that consent and that it is appropriate for the treatment to be given.
93.Where a detained patient is incapable of consent, the SOAD must certify that the patient is not capable of understanding the nature, purpose and likely effects of the treatment and that it is appropriate for the patient to receive the treatment. Before doing so, the SOAD must first consult two other persons - one must be a nurse concerned with the patient’s medical treatment and the second must be another person professionally concerned with the patient’s medical treatment who is neither a nurse nor a doctor. The patient’s RC (if they have one) and the person in charge of their treatment (if they are not the RC) are excluded from being a person the SOAD has a statutory duty to consult.
94.Where an informal child patient (who is not subject to a CTO) is incapable of consent and there is authority to treat such a patient, the SOAD must similarly certify that the patient is not capable of understanding the nature, purpose and likely effects of the treatment and that it is appropriate for the patient to receive the treatment. Before doing so, the SOAD must first consult two other persons - one must be a nurse concerned with the patient’s medical treatment and the second must be another person professionally concerned with the patient’s medical treatment who is neither a nurse nor a doctor. The person in charge of the patient’s treatment is excluded from being a person the SOAD has a statutory duty to consult.
95.The SOAD is not able to give such a certificate if giving the treatment would conflict with:
a valid and applicable advance decision of the patient not to receive the treatment as provided for by the Mental Capacity Act 2005, or
a decision made by a deputy or donee as defined by the Mental Capacity Act 2005, where the deputy or donee has the authority to refuse such treatment on behalf of the patient, or
an order of the Court of Protection.
96.Before making regulations regarding section 58A, the Secretary of State for England and the Welsh Ministers for Wales shall consult any such bodies as appear to them to be concerned.
97.Section 28 of the 2007 Act amends section 62 of the 1983 Act (urgent treatment) so that, where the treatment is ECT, urgent treatment can only be given where it is immediately necessary to save life or to prevent a serious deterioration in the patient’s condition. Where the treatment is another form of section 58A type treatment (to be determined by regulations under section 58A), the Secretary of State for England and the Welsh Ministers for Wales, may make regulations regarding which of the criteria in section 62(1) of the 1983 Act for urgent treatment are to apply to that treatment. Section 28 of the 2007 Act also makes consequential amendments to sections 58, 59, 60, 61, 62 and 63 of the 1983 Act, and to section 28 of the MCA, to take account of the new section 58A.
98.Section 29 of the 2007 Act amends section 60 of the 1983 Act (withdrawal of consent), which sets out the effect on a certificate issued under Part 4 of the 1983 Act by either the approved clinician in charge of the treatment or a SOAD when the patient, having given consent, withdraws that consent. The amendment clarifies the position when a patient who has been certified as unable to understand the nature, purpose and likely effects of the treatment becomes able to so understand. It also clarifies the position when a person, having consented, loses the ability to understand the nature, purpose and likely effects of the treatment. In both cases the certificate is no longer valid.
99.Section 30 places a duty on the appropriate national authority to make arrangements for help to be provided by independent mental health advocates (IMHAs). IMHAs must be made available to certain “qualifying patients” subject to the powers or safeguards in the 1983 Act as amended, to provide support in the ways specified in the provisions.
100.Qualifying patients will be informed that they are eligible for the services provided by an IMHA as soon as is practicable. An IMHA will meet with a patient on the request of the patient, the nearest relative, the responsible clinician or an AMHP.
101.Where a patient has the capacity to consent and does so, an IMHA has a right to see any hospital or local authority records relating to him. If a patient lacks the capacity to consent, the record holder can still allow access to such records if it is appropriate and relevant to the help the advocate will provide to the patient. IMHAs have a right to meet patients in private and to visit and interview anyone professionally concerned with the patient’s medical treatment.
102.The appropriate national authority can make regulations setting out, for example, the standards and qualifications that will need to be met by an individual in order to be approved as an IMHA. These regulations can make different provision for different cases. This will allow them to take account of the different needs of different groups of patients.
103.Section 30 also amends section 134 of the 1983 Act, to ensure that hospital managers cannot withhold correspondence between patients and their advocates.
104.Section 31 adds new section 131A to the 1983 Act. This places hospital managers under a duty to ensure that patients aged under 18 admitted to hospital for mental disorder are accommodated in an environment that is suitable for their age (subject to their needs). In determining whether the environment is suitable, the managers must consult a person whom they consider to be suitable because of their experience in child and adolescent mental health services cases.
105.Section 31 also amends section 39 of the 1983 Act (information as to hospitals) to provide that a court may request information from a primary care trust (PCT) (in England) or local health board (LHB) (in Wales) when dealing with a person aged under 18 in certain cases. Those cases are where the court is minded to make a hospital order or interim hospital order, to remand the person to hospital for a report on their mental condition (section 35) or for treatment (section 36), or (in the case of a magistrates’ court) to order detention in hospital when committing an offender to the crown court (section 44). The information will be about the availability of accommodation or facilities designed to be specially suitable for patients under 18. The purpose of this provision is to ensure that courts do not place a child in a prison setting when a suitable hospital bed would be a more appropriate option.
106.Section 31 also amends section 140 of the 1983 Act (notification of hospitals having arrangements for reception of urgent cases) to place a duty on PCTs and LHBs to advise local social service authorities in their area of hospitals providing accommodation specially suitable for patients aged under 18.
107.The supervised community treatment (SCT) provisions will allow some patients with a mental disorder to live in the community whilst still being subject to powers under the 1983 Act. Only those patients who are detained in hospital for treatment will be eligible to be considered for SCT. In order for a patient to be placed on SCT, various criteria need to be met. An AMHP also needs to agree that SCT is appropriate. Patients who are on SCT will be subject to conditions whilst living in the community. Most conditions will depend on individual circumstances but must be for the purpose of ensuring the patient receives medical treatment, or to prevent risk of harm to the patient or others. Such conditions will form part of the patient’s community treatment order (CTO) which is made by the RC. Patients on SCT may be recalled to hospital for treatment should this become necessary. Afterwards they may then resume living in the community or, if they need to be treated as an in-patient again, their RC may revoke the CTO and the patient will remain in hospital for the time being.
108.SCT differs from after-care under supervision, which it will replace, in that it will allow patients who do not need to continue receiving treatment in hospital to be discharged into the community, but with powers of recall to hospital if necessary. It is different from leave of absence under section 17 of the 1983 Act, which remains suitable for a patient as a means to give shorter term leave from hospital as part of the patient’s overall management as a hospital patient.
109.Section 32 inserts new sections 17A-17G which set out how CTOs are to be made, and how they will work.
110.Under new section 17A, the RC may make a CTO for a patient detained under section 3, or for a patient who is not subject to restrictions under Part 3 of the 1983 Act (i.e. to a restriction order, a restriction direction or a limitation direction), if they are satisfied that the relevant criteria are met. An AMHP must agree that the criteria are met and also that a CTO is appropriate for that patient. The CTO, and the AMHP’s agreement to it, will be in writing.
111.The criteria that the patient must meet - in order to be suitable for SCT - are specified within section 17A(5). The patient must need medical treatment for their mental disorder for their own health or safety, or for the protection of others. It must be possible for the patient to receive the treatment they need without having to be in hospital, provided that the patient can be recalled to hospital for treatment should this become necessary. When deciding if it is necessary to be able to recall the patient to hospital, the RC must consider the risk that the patient’s condition will deteriorate after discharge from hospital, as a result, for example, of their refusing or neglecting to receive the treatment they need. In considering that risk, the RC must have regard to the patient’s history of mental disorder and any other relevant factors. Appropriate medical treatment for the patient must be available in the community. Patients who are subject to a CTO are referred to in the legislation as “community patients”.
112.Section 17B requires that CTOs specify conditions to which a community patient will be subject. There are two mandatory conditions that the patient must be available for medical examinations, firstly as required for the purposes of determining whether the CTO should be extended, and secondly to allow a SOAD to make a Part 4A certificate. Otherwise, conditions must be necessary or appropriate to ensure that the patient receives medical treatment, or to prevent harm to the patient’s health or safety, or to protect others. The RC and an AMHP must agree the conditions. The RC may vary the conditions, or suspend any of them.
113.Other than the conditions about availability for examination, the conditions specified under section 17B are not in themselves enforceable but, if a patient fails to comply with any condition, the RC may take that into account when considering if it is necessary to use the recall power (section 17B(6)). However, if the criteria for recall are met, the recall power may still be exercised even if the patient is complying with the conditions (section 17B(7)). See also section 17E.
114.Section 17C specifies the duration of a CTO. A patient’s CTO will end either if the period of the CTO runs out and the CTO is not extended, or the patient is discharged from the powers of the 1983 Act. It will also end if the RC revokes the CTO following the patient’s recall to hospital under section 17F or, for Part 3 patients, if the CTO was time-specific and runs out.
115.Section 17D sets out the effect of a CTO on certain other provisions of the 1983 Act. The application for admission for treatment under which the patient was detained remains in force, but the hospital managers’ authority to detain the patient under section 6(2) is suspended whilst the patient remains a community patient. The authority to detain the patient will not expire while it is suspended. However, when a patient’s CTO ends, the patient will be discharged absolutely from SCT. Should an application for admission for treatment still remain in force, this will also end.
116.Section 17D(2)(b) provides that where the 1983 Act mentions patients who are “detained” or “liable to be detained”, this does not include community patients. Where it is intended that a provision should apply to community patients, the 1983 Act is amended by the 2007 Act to make this clear. In addition, references in other legislation to patients who are detained, or liable to be detained, do not include community patients.
117.Section 17E provides that a community patient may be recalled to hospital if the RC decides that the patient needs to receive treatment for his or her mental disorder in a hospital and that, without this treatment, there would be a risk of harm to the patient’s health or safety, or to other people. The recall notice will trigger the hospital managers’ authority to re-detain the patient (section 17E(6)). A community patient may be recalled even if the patient is in hospital at the time. This could happen, for example, if the patient goes to hospital but then refuses the treatment that the RC considers is needed, and the patient, or someone else, would be at risk if the patient were not to receive that treatment.
118.Under section 17E(2), there is also a power to recall a patient to hospital if the patient fails to comply with the condition under section 17B(3) that specifies that patients must make themselves available for examination. This allows the RC to examine a patient to assess whether a patient’s CTO should be extended and also allows a SOAD to examine the patient in order to meet the certificate requirement in new sections 64B and 64E of the 1983 Act (see section 35 below).
119.Section 17F sets out the powers which apply to a patient who is recalled to hospital under section 17E. If the RC decides that the patient meets the 1983 Act’s criteria for detention for treatment in hospital (set out in section 3(2)), the RC may, subject to an AMHP’s agreement that it is appropriate, revoke the patient’s CTO under section 17F(4). The RC can only recall a patient for a maximum of 72 hours without revoking the CTO. Therefore, the RC may release a recalled patient from detention at any time within the first 72 hours, provided the CTO has not been otherwise revoked. On release, the patient continues to remain subject to the CTO.
120.Section 17G provides that when a CTO is revoked (so that the patient is no longer a community patient), the authority to detain the patient under section 6(2) applies (unless the patient is a Part 3 patient), exactly as if the patient had never been a community patient. In addition, all the 1983 Act’s provisions apply to the patient as they did when the patient was first admitted to hospital for treatment before the CTO was made (unless the 1983 Act provides otherwise).
121.Section 32 also inserts new sections 20A and 20B which set out how long CTOs will last, and how they can be extended. A new CTO will initially last for 6 months from the date when the order was made. The order can then be extended for a further 6 months and, following that, it can be extended for periods of one year at a time. For an order to be extended under section 20A, the RC must examine the patient and furnish a report to the hospital managers confirming that the conditions, as set out in section 20A(6), are met. The RC must apply exactly the same considerations as when the CTO was first made, so that the RC must again consider the risk that the patient’s condition will deteriorate in the community, as a result, for example, of their refusing or neglecting to receive the treatment they need. In considering that risk, the RC must have regard to the patient’s history of mental disorder and any other relevant factors. The RC can only make a report to extend the CTO if the grounds for the CTO still apply. An AMHP must agree that the criteria for extension of the CTO are satisfied, and that it is appropriate to extend the CTO, before the report can be made.
122.Section 33 makes provision in respect of the relationship of SCT with other powers in the 1983 Act. It amends the provisions in the 1983 Act which authorise leave of absence from hospital (section 17). Before granting longer term leave of over 7 consecutive days (or where leave is extended so the total leave granted exceeds 7 consecutive days) a RC must consider whether SCT is the more appropriate way of managing the patient in the community.
123.Section 34 replaces section 56 of the 1983 Act which sets out the patients to whom Part 4 of that Act, which deals with consent to treatment, applies. In addition to detained patients, informal patients under 18 years of age will be subject to new section 58A of the 1983 Act (see section 27 above). A community patient is not subject to the provisions of Part 4 of the 1983 Act (except section 57 which applies to any patient) unless recalled to hospital for treatment.
Mental Health Act 2007