Office of Public Sector Information
PART 1 continued CHAPTER 2 continued
In section 12 of the 1983 Act (general provisions as to medical recommendations), after subsection (2) insert—
“(2A) A registered medical practitioner who is an approved clinician shall be treated as also approved for the purposes of this section under subsection (2) above as having special experience as mentioned there.”
After section 142 of the 1983 Act, insert—
The Secretary of State jointly with the Welsh Ministers may by regulations make provision as to the circumstances in which—
(a) a practitioner approved for the purposes of section 12 above, or
(b) a person approved to act as an approved clinician for the purposes of this Act,
approved in relation to England is to be treated, by virtue of his approval, as approved in relation to Wales too, and vice versa.”
For section 114 of the 1983 Act (appointment of approved social workers) and the cross-heading immediately above it substitute—
(1) A local social services authority may approve a person to act as an approved mental health professional for the purposes of this Act.
(2) But a local social services authority may not approve a registered medical practitioner to act as an approved mental health professional.
(3) Before approving a person under subsection (1) above, a local social services authority shall be satisfied that he has appropriate competence in dealing with persons who are suffering from mental disorder.
(4) The appropriate national authority may by regulations make provision in connection with the giving of approvals under subsection (1) above.
(5) The provision which may be made by regulations under subsection (4) above includes, in particular, provision as to—
(a) the period for which approvals under subsection (1) above have effect;
(b) the courses to be undertaken by persons before such approvals are to be given and during the period for which such approvals have effect;
(c) the conditions subject to which such approvals are to be given; and
(d) the factors to be taken into account in determining whether persons have appropriate competence as mentioned in subsection (3) above.
(6) Provision made by virtue of subsection (5)(b) above may relate to courses approved or provided by such person as may be specified in the regulations (as well as to courses approved under section 114A below).
(7) An approval by virtue of subsection (6) above may be in respect of a course in general or in respect of a course in relation to a particular person.
(8) The power to make regulations under subsection (4) above includes power to make different provision for different cases or areas.
(9) In this section “the appropriate national authority” means—
(a) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in England, the Secretary of State;
(b) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in Wales, the Welsh Ministers.
(10) In this Act “approved mental health professional” means—
(a) in relation to acting on behalf of a local social services authority whose area is in England, a person approved under subsection (1) above by any local social services authority whose area is in England, and
(b) in relation to acting on behalf of a local social services authority whose area is in Wales, a person approved under that subsection by any local social services authority whose area is in Wales.”
After section 114 of the 1983 Act insert—
(1) The relevant Council may, in accordance with rules made by it, approve courses for persons who are or wish to become approved mental health professionals.
(2) For that purpose—
(a) subsections (2) to (4)(a) and (7) of section 63 of the Care Standards Act 2000 apply as they apply to approvals given, rules made and courses approved under that section; and
(b) sections 66 and 71 of that Act apply accordingly.
(3) In subsection (1), “the relevant Council” means—
(a) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in England, the General Social Care Council;
(b) in relation to persons who are or wish to become approved to act as approved mental health professionals by a local social services authority whose area is in Wales, the Care Council for Wales.
(4) 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.
(5) The General Social Care Council and the Care Council for Wales may also carry out, or assist other persons in carrying out, research into matters relevant to training for approved mental health professionals.”
In section 62 of the Care Standards Act 2000 (c. 14) (codes of practice), after subsection (1) insert—
“(1A) The codes may also lay down standards of conduct and practice expected of social workers when carrying out the functions of an approved mental health professional (as defined in section 114 of the Mental Health Act 1983).”
Schedule 2 (which contains amendments in connection with section 18) has effect.
(1) The 1983 Act is amended as follows.
(2) In section 11 (general provisions as to applications), after subsection (1) insert—
“(1A) No application mentioned in subsection (1) above shall be made by an approved mental health professional if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below.”
(3) In section 12 (general provisions as to medical recommendations), in subsection (1), after “this Part of this Act” insert “or a guardianship application”.
(4) In that section, for subsections (3) to (7) substitute—
“(3) No medical recommendation shall be given for the purposes of an application mentioned in subsection (1) above if the circumstances are such that there would be a potential conflict of interest for the purposes of regulations under section 12A below.”
(5) After that section insert—
(1) The appropriate national authority may make regulations as to the circumstances in which there would be a potential conflict of interest such that—
(a) an approved mental health professional shall not make an application mentioned in section 11(1) above;
(b) a registered medical practitioner shall not give a recommendation for the purposes of an application mentioned in section 12(1) above.
(2) Regulations under subsection (1) above may make—
(a) provision for the prohibitions in paragraphs (a) and (b) of that subsection to be subject to specified exceptions;
(b) different provision for different cases; and
(c) transitional, consequential, incidental or supplemental provision.
(3) In subsection (1) above, “the appropriate national authority” means—
(a) in relation to applications in which admission is sought to a hospital in England or to guardianship applications in respect of which the area of the relevant local social services authority is in England, the Secretary of State;
(b) in relation to applications in which admission is sought to a hospital in Wales or to guardianship applications in respect of which the area of the relevant local social services authority is in Wales, the Welsh Ministers.
(4) References in this section to the relevant local social services authority, in relation to a guardianship application, are references to the local social services authority named in the application as guardian or (as the case may be) the local social services authority for the area in which the person so named resides.”
(6) In section 13 (duty to make applications for admission or guardianship), in subsection (5), after “section 11(4) above” insert “or of regulations under section 12A above”.
(1) Section 29 of the 1983 Act (appointment by court of acting nearest relative) is amended as follows.
(2) In subsection (1), for the words from “the applicant” to the end substitute “the person specified in the order”.
(3) After subsection (1) insert—
“(1A) If the court decides to make an order on an application under subsection (1) above, the following rules have effect for the purposes of specifying a person in the order—
(a) if a person is nominated in the application to act as the patient’s nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);
(b) otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient’s nearest relative and is willing to do so.”
(4) In subsection (2)—
(a) after “on the application of—” insert—
“(za) the patient;”, and
(b) omit the words from “but in relation to” to the end.
(5) In subsection (3)—
(a) in paragraph (c) omit the word “or” at the end of the paragraph, and
(b) after paragraph (d) insert “; or
(e) that the nearest relative of the patient is otherwise not a suitable person to act as such.”
(6) In subsection (5), for “(3)(a) or (b)” substitute “(3)(a), (b) or (e)”.
(1) Section 30 of the 1983 Act (discharge and variation of orders under section 29) is amended as follows.
(2) In subsection (1)—
(a) in paragraph (a), after “in any case, by” insert “the patient or”, and
(b) in paragraph (b), for “or paragraph (b)” substitute “, (b) or (e)”.
(3) After that subsection insert—
“(1A) But, in the case of an order made on the ground specified in paragraph (e) of section 29(3) above, an application may not be made under subsection (1)(b) above by the person who was the nearest relative of the patient when the order was made except with leave of the county court.”
(4) In subsection (2)—
(a) after “or on the application of” insert “the patient or of”, and
(b) for the words from “for the first-mentioned person” to the end substitute “another person for the person having those functions”.
(5) After that subsection insert—
“(2A) If the court decides to vary an order on an application under subsection (2) above, the following rules have effect for the purposes of substituting another person—
(a) if a person is nominated in the application to act as the patient’s nearest relative and that person is, in the opinion of the court, a suitable person to act as such and is willing to do so, the court shall specify that person (or, if there are two or more such persons, such one of them as the court thinks fit);
(b) otherwise, the court shall specify such person as is, in its opinion, a suitable person to act as the patient’s nearest relative and is willing to do so.”
(6) In subsection (4), for the words from “An order under” to “period is specified” substitute “An order made on the ground specified in paragraph (c) or (d) of section 29(3) above shall, unless previously discharged under subsection (1) above, cease to have effect as follows”.
(7) After subsection (4A) (inserted by Schedule 3 to this Act) insert—
“(4B) An order made on the ground specified in paragraph (a), (b) or (e) of section 29(3) above shall—
(a) if a period was specified under section 29(5) above, cease to have effect on expiry of that period, unless previously discharged under subsection (1) above;
(b) if no such period was specified, remain in force until it is discharged under subsection (1) above.”
In section 66 of the 1983 Act (applications to tribunal), in subsection (1)(h) after “section 29 above” insert “on the ground specified in paragraph (c) or (d) of subsection (3) of that section”.
(1) Section 26 of the 1983 Act (definition of “relative” and “nearest relative”) is amended as set out in subsections (2) to (5).
(2) In subsection (1)(a), after “wife” insert “or civil partner”.
(3) In subsection (5)—
(a) in paragraph (b) after “wife” insert “or civil partner”, and
(b) in paragraph (c) after “wife,” insert “civil partner,”.
(4) In subsection (6)—
(a) for “and “wife” include a person who is living with the patient as the patient’s husband or wife” substitute “, “wife” and “civil partner” include a person who is living with the patient as the patient’s husband or wife or as if they were civil partners”, and
(b) for “unless the husband or wife” substitute “or a patient in a civil partnership unless the husband, wife or civil partner”.
(5) In subsection (7)(b), for “unless the husband or wife” substitute “or a patient in a civil partnership unless the husband, wife or civil partner”.
(6) In section 27 of the 1983 Act (children and young persons in care), after “wife” insert “or civil partner”.
After section 58 of the 1983 Act insert—
(1) This section applies to the following forms of medical treatment for mental disorder—
(a) electro-convulsive therapy; and
(b) such other forms of treatment as may be specified for the purposes of this section by regulations made by the appropriate national authority.
(2) Subject to section 62 below, a patient shall be not be given any form of treatment to which this section applies unless he falls within subsection (3), (4) or (5) below.
(3) A patient falls within this subsection if—
(a) he has attained the age of 18 years;
(b) he has consented to the treatment in question; and
(c) either the approved clinician in charge of it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it.
(4) A patient falls within this subsection if—
(a) he has not attained the age of 18 years; but
(b) he has consented to the treatment in question; and
(c) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment) has certified in writing—
(i) that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it; and
(ii) that it is appropriate for the treatment to be given.
(5) A patient falls within this subsection if a registered medical practitioner appointed as aforesaid (not being the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question) has certified in writing—
(a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment; but
(b) that it is appropriate for the treatment to be given; and
(c) that giving him the treatment would not conflict with—
(i) an advance decision which the registered medical practitioner concerned is satisfied is valid and applicable; or
(ii) a decision made by a donee or deputy or by the Court of Protection.
(6) Before giving a certificate under subsection (5) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment but, of those persons—
(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
(b) neither shall be the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question.
(7) This section shall not by itself confer sufficient authority for a patient who falls within section 56(5) above to be given a form of treatment to which this section applies if he is not capable of understanding the nature, purpose and likely effects of the treatment (and cannot therefore consent to it).
(8) Before making any regulations for the purposes of this section, the appropriate national authority shall consult such bodies as appear to it to be concerned.
(9) In this section—
(a) a reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient;
(b) “valid and applicable”, in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act;
(c) a reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act; and
(d) a reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.
(10) In this section, “the appropriate national authority” means—
(a) in a case where the treatment in question would, if given, be given in England, the Secretary of State;
(b) in a case where the treatment in question would, if given, be given in Wales, the Welsh Ministers.”
(1) Part 4 of the 1983 Act (consent to treatment) is amended as follows.
(2) In section 58 (treatment requiring consent or a second opinion)—
(a) in subsection (1)(b), after “section 57 above” insert “or section 58A(1)(b) below”, and
(b) in subsection (3)(b), before “has not consented to it” insert “being so capable”.
(3) In section 59 (plans of treatment), for “or 58” substitute “, 58 or 58A”.
(4) In section 60 (withdrawal of consent), for “or 58”, substitute “, 58 or 58A”.
(5) In section 61 (review of treatment)—
(a) in subsection (1), for “or 58(3)(b)” substitute “, 58(3)(b) or 58A(4) or (5)”, and
(b) in subsection (3)—
(i) for “or 58(3)(b)” substitute “, 58(3)(b) or 58A(4) or (5)”, and
(ii) for “and 58” substitute “, 58 and 58A”.
(6) In section 62 (urgent treatment), after subsection (1) insert—
“(1A) Section 58A above, in so far as it relates to electro-convulsive therapy by virtue of subsection (1)(a) of that section, shall not apply to any treatment which falls within paragraph (a) or (b) of subsection (1) above.
(1B) Section 58A above, in so far as it relates to a form of treatment specified by virtue of subsection (1)(b) of that section, shall not apply to any treatment which falls within such of paragraphs (a) to (d) of subsection (1) above as may be specified in regulations under that section.
(1C) For the purposes of subsection (1B) above, the regulations—
(a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);
(b) may make provision which applies subject to specified exceptions; and
(c) may include transitional, consequential, incidental or supplemental provision.”
(7) In that section, in subsection (2), for “or 58” substitute “, 58 or 58A”.
(8) In section 63 (treatment not requiring consent), for “, not being treatment falling within section 57 or 58 above,” substitute “, not being a form of treatment to which section 57, 58 or 58A above applies,”.
(9) In section 64 (supplementary provisions), after subsection (1A) (inserted by section 12 of this Act) insert—
“(1B) References in this Part of this Act to the approved clinician in charge of a patient’s treatment shall, where the treatment in question is a form of treatment to which section 58A above applies and the patient falls within section 56(5) above, be construed as references to the person in charge of the treatment.
(1C) Regulations made by virtue of section 32(2)(d) above apply for the purposes of this Part as they apply for the purposes of Part 2 of this Act.”
(10) In section 28 of the Mental Capacity Act 2005 (c. 9) (Mental Health Act matters), after subsection (1) insert—
“(1A) Subsection (1) does not apply in relation to any form of treatment to which section 58A of that Act (electro-convulsive therapy, etc.) applies if the patient comes within subsection (7) of that section (informal patient under 18 who cannot give consent).”.
(1) Section 60 of the 1983 Act (withdrawal of consent) is amended as follows.
(2) After subsection (1) insert—
“(1A) Subsection (1B) below applies where—
(a) the consent of a patient to any treatment has been given for the purposes of section 57, 58 or 58A above; but
(b) before the completion of the treatment, the patient ceases to be capable of understanding its nature, purpose and likely effects.
(1B) The patient shall, subject to section 62 below, be treated as having withdrawn his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
(1C) Subsection (1D) below applies where—
(a) a certificate has been given under section 58 or 58A above that a patient is not capable of understanding the nature, purpose and likely effects of the treatment to which the certificate applies; but
(b) before the completion of the treatment, the patient becomes capable of understanding its nature, purpose and likely effects.
(1D) The certificate shall, subject to section 62 below, cease to apply to the treatment and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.”
(3) In subsection (2), for “subsection (1)” substitute “subsections (1) to (1D)”.
(1) Part 10 of the 1983 Act (miscellaneous and supplementary) is amended as follows.
(2) Before section 131 insert—
(1) The appropriate national authority shall make such arrangements as it considers reasonable to enable persons (“independent mental health advocates”) to be available to help qualifying patients.
(2) The appropriate national authority may by regulations make provision as to the appointment of persons as independent mental health advocates.
(3) The regulations may, in particular, provide—
(a) that a person may act as an independent mental health advocate only in such circumstances, or only subject to such conditions, as may be specified in the regulations;
(b) for the appointment of a person as an independent mental health advocate to be subject to approval in accordance with the regulations.
(4) In making arrangements under this section, the appropriate national authority shall have regard to the principle that any help available to a patient under the arrangements should, so far as practicable, be provided by a person who is independent of any person who is professionally concerned with the patient’s medical treatment.
(5) For the purposes of subsection (4) above, a person is not to be regarded as professionally concerned with a patient’s medical treatment merely because he is representing him in accordance with arrangements—
(a) under section 35 of the Mental Capacity Act 2005; or
(b) of a description specified in regulations under this section.
(6) Arrangements under this section may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
(7) Regulations under this section—
(a) may make different provision for different cases;
(b) may make provision which applies subject to specified exceptions;
(c) may include transitional, consequential, incidental or supplemental provision.
(1) The help available to a qualifying patient under arrangements under section 130A above shall include help in obtaining information about and understanding—
(a) the provisions of this Act by virtue of which he is a qualifying patient;
(b) any conditions or restrictions to which he is subject by virtue of this Act;
(c) what (if any) medical treatment is given to him or is proposed or discussed in his case;
(d) why it is given, proposed or discussed;
(e) the authority under which it is, or would be, given; and
(f) the requirements of this Act which apply, or would apply, in connection with the giving of the treatment to him.
(2) The help available under the arrangements to a qualifying patient shall also include—
(a) help in obtaining information about and understanding any rights which may be exercised under this Act by or in relation to him; and
(b) help (by way of representation or otherwise) in exercising those rights.
Mental Health Act 2007