Title page
Contents
Acknowledgement 17
Introduction 18
Presentation and content 18
References to legislation 20
Using the Act 23
1: The Mental Health Act 1983-the structure of the Act and definitions 24
Introduction 24
Purpose of the Act [section 1(1)] 24
Structure of the Act 24
Meaning of part 2 and part 3 patients 27
Definition of mental disorder[section 1(2)] 27
Exclusion from the definition of mental disorder: alcohol or drug dependence [section 1(3)] 27
Learning disability qualification [sections 1(2A), (2B) and (4)] 27
Diplomatic status 28
Definition of medical treatment and medical treatment for mental disorder[section 145(1) and (4)] 28
Definition of patient [section 145] 29
Definition of nearest relative [section 26] 29
Definition of NHS and independent hospitals [sections 34 and 145] 30
Definition of high security psychiatric hospital 31
Definition of hospital managers [section 145] 31
Meaning of 'detained' and 'liable to be detained' 32
Meaning of restricted patient 32
Meaning of AMHP, approved clinician and responsible clinician 32
Meaning of registered medical practitioner 32
Meaning of doctor approved under section 12 33
Meaning of community treatment orders and CTO patients 33
Meaning of Secretary of State 33
Meaning of 'in writing' and use of electronic communication 33
Meaning of 'sent', 'delivered', 'furnished' and similar terms (service of documents) [regulation 3] 34
Glossary of key terms 35
Statutory forms 35
Protecting patients' rights and autonomy 36
2: The nearest relative 37
Introduction 37
The significance of the nearest relative in the Act 37
Patients who do not have a nearest relative for the purposes of the Act 40
Meaning of relative in the Act [section 26(1), (6) and (7)] 40
Identification of the nearest relative [section 26(3) - (5)] 41
Automatic change of nearest relative 42
Exception from normal rules for children and young people in care[section 27] 42
Exception from normal rules for children and young people subject to guardianship under legislation for the protection of children [section 28] 42
Delegation of rights of nearest relatives [section 32(2) and regulation 24] 43
Appointment of acting nearest relatives where there is no nearest relative or where the nearest relative is to be displaced [section 29] 44
Applications to the county courts [section 29(1), (1A) and (2)] 45
Grounds on which an application can be made [section 29(3)] 45
Effect of an application on a patient's detention for assessment under section 2 [sections 29(4) and 30(3)] 46
An order appointing an acting nearest relative [section 29(1A)] 46
Interim orders 47
Duration of the order [sections 29(5) and 30(4) to (4B)] 47
Effect of an order appointing an acting nearest relative [section 29(6)] 48
Variation of an order appointing an acting nearest relative [section 30(2)] 49
Discharge of an order appointing an acting nearest relative [section 30(1) and (1A)] 49
Procedure for applying to county court [section 31] 50
3: Code of Practice, Care Quality Commission and the general protection of patients 52
Introduction 52
Code of Practice [section 118] 52
Care Quality Commission 53
General protection of patients [section 120] 54
Consent to treatment and second opinion doctors [section 119] 55
Reviewing decisions to withhold postal packets [section 134] 55
Annual reports [section 120D] 55
4: Independent mental health advocates 56
Introduction 56
Duty to arrange advocacy services [section 130A] 56
Qualifying patients [section 130C] 56
Principle of independence [section 130A(4)] 57
The role of independent mental health advocates [section 130B] 57
Right of advocates to visit patients [section 130B(3)] 58
Duty of advocates to visit patients [section 130B(5) and (6)] 58
Right of advocates to interview professionals and look at records [section 130B(3) and (4)] 58
Duty to inform patients about the availability of advocacy services[section 130D] 59
Information for nearest relatives [section 130D(5) and (6)] 60
5: Patients' correspondence 61
Introduction 61
Patients' correspondence [section 134] 61
Correspondence not to be withheld [section 134(3) and (3A) and regulation 31] 62
Procedure for inspecting correspondence [sections 134, 134A and regulation 29] 63
Care Quality Commission's power to review a decision to withhold post [section 134A and regulation 30] 64
6: The Tribunal 65
Introduction 65
The First-tier Tribunal 65
Upper Tribunal 66
Tribunal Rules and Practice Directions 66
Reviews and appeals 67
Witness and information 67
Representation 67
Legal aid 67
Administrative Justice Forum 68
Patients' rights to make applications [section 66, 69 and 70] 68
Nearest relatives' rights to make applications [section 66 and 69] 69
Displaced nearest relatives' rights to make applications [section 66(1)(h)] 69
Only one application per period [section 77] 69
Applications to the Tribunal in Wales in respect of patients in England (and vice versa) [section 77(3) and (4)] 69
Visiting and examination of patients in respect of applications [section 76] 70
Definitions 91
Hospital managers' duty to refer certain patients to the Tribunal after six months of first being detained [section 68] 91
Hospital managers' duty to refer certain patients to the Tribunal after three years (or one year) since their last Tribunal hearing [section 68(6)] 93
Hospital managers' duty to refer patients on a CTO to the Tribunal if their CTO is revoked [section 68(7)] 94
Secretary of State's power to refer patients (except restricted patients) [section 67(1)] 94
References by the Secretary of State in respect of restricted patients [section 71] 95
References to the Tribunal in for Wales in respect of patients in England (and vice versa) [section 77(3)] 95
Secretary of State's power to vary periods after which patients must be referred to the Tribunal [sections 68A and 71(3)] 95
Visiting and examination of patients in respect of references [section 67(2) and 68(8)] 96
Patients who are outside the remit of the Tribunal 96
Powers in respect of detained patients except restricted patients [section 72] 96
Powers in respect of patients on a CTO [section 72] 98
Powers in respect of guardianship patients [section 72] 99
Powers in respect of patients subject to restriction orders [section 73] 99
Powers in respect of patients subject to limitation directions or restriction directions [section 74] 100
Powers in respect of conditionally discharged patients [section 75] 101
Assessment, transport and admission to hospital 102
7: Police powers and places of safety 103
Introduction 103
Approved mental health professionals' power of entry and inspection [section 115] 103
Warrants to search for and remove patients not receiving proper care [section 135(1)] 103
Warrant to search for and remove patients who are liable to be taken or returned under the Act [section 135(2)] 104
Power of police to remove mentally disordered persons from public places to places of safety [section 136] 105
Related material 105
8: Applications for detention in hospital 106
Introduction 106
Criteria for admission for assessment [section 2] 106
Criteria for admission for treatment [section 3] 106
Applications for admission to hospital [sections 2, 3 and 11] 107
Applications in respect of wards of court [section 33] 108
Duty on local authority to arrange for AMHP to consider making application for admission to hospital [section 13] 108
Duty on clinical commissioning groups to give local authorities notice of hospitals having arrangements for special cases [section 140] 108
Duty on AMHPs to inform nearest relatives of applications for admission for assessment [section 11(3)] 109
Nearest relative's power to object to an application for admission for treatment and AMHP's duty to consult [section 11(4)] 109
Duty of the AMHP to be satisfied that detention in hospital is the most appropriate course of action [section 13(2)] 110
Duty on AMHPs to make applications in certain circumstances [section 13(1A)] 111
Medical recommendations [section 12] 111
Emergency applications for admission for assessment [section 4] 112
Conflicts of interest [section 11(1) and 12A and Conflicts of Interest regulations] 113
Time limits in respect of making applications [sections 6, 11 and 12] 116
Time limits for emergency applications [section 4] 117
Forms to be used for making the application [regulation 4] 118
Procedure to be used for making the application [regulations 3 and 4] 119
Transport ('conveyance') of patients to hospital [sections 6, 137 and 138] 119
Applications in respect of patients already in hospital [section 5(1)] 119
Holding powers pending applications in respect of patients already in hospital [sections 5(2) and 5(4)] 120
Holding power of doctor or approved clinician in charge of patient's treatment [section 5 and regulations 3 and 4] 120
Nurses' six hour holding power [section 5(4) and (5), regulations 3 and 4, and nurses order] 121
Admission to hospital on the basis of an application [section 6 and regulation 4] 122
Circumstances in which an application may not be acted on [section 6(3)] 123
Effect of admission on previous applications [section 6(4)] 124
Effect of admission for treatment on patients on community treatment orders or subject to guardianship [section 6(4)] 124
9: Detention in hospital 125
Introduction 125
Patients to whom this chapter applies 125
Start of period of detention [sections 2, 5 and 20] 126
Record of admission or detention [regulation 4] 127
The duty of hospital managers to provide information [section 132] 128
Information about independent mental health advocates (IMHAs) for detained patients [section 130D] 129
Children and young people [section 131A] 129
Social report [section 14] 130
Responsible clinicians [section 34] 130
10: Transfer of patients 131
Introduction 131
Patients to whom this chapter applies 131
Transfers from England to Wales and vice versa - applicable regulations [section 19 and regulation 10] 131
Transfer of patients detained in hospital [section 19 and regulation 7] 132
Transfers of NHS patients detained in independent hospitals [regulation 7] 132
Transport of patients who are being transferred [regulation 11 and section 137(1) and 138] 133
Effect of transfer between hospitals [section 19] 133
Records of admission [regulation 7] 134
Information for patients transferred between hospitals and their nearest relatives [section 132 and regulation 26(1)(a)] 134
Transfer from guardianship to hospital [sections 19, 66 and 68 and regulations 8 and 11] 134
Transfer from hospital to guardianship [section 19 and regulation 7] 135
11: Legal custody, absconding and returning 137
Introduction 137
Custody under the Act [section 137(2)] 137
People deemed to be in legal custody [section 137(1)] 137
Patients who abscond from legal custody [section 138] 138
Time limits for returning patients who are AWOL or who have absconded from legal custody under the Act [sections 18 and 138] 139
Patients who go absent without leave or abscond from England or Wales to Scotland, Northern Ireland, the Isle of Man or the Channel Islands 142
Patients absent without leave while on escorted leave to Scotland 143
Patients who go AWOL or abscond overseas [section 40(6)] 144
Patients on escorted leave etc from Scotland, Northern Ireland, Isle of Man or Channel Islands [section 17(6) and (7), 137 and 138] 144
Patients absent without leave etc from Scotland, Northern Ireland, Isle of Man or Channel Islands [section 87 and 89] 144
Additional considerations for specific patients 147
12: Children and young people under the age of 18 148
Introduction 148
Consent to admission by patients aged 16 or 17 [section 131] 148
Children and young people aged under 18 admitted to hospital for mental health treatment [sections 131A and 140] 148
Electro-convulsive therapy (ECT) [section 58A] 149
Wards of court [section 33] 149
Children and young people in local authority care [section 27 and 116] 150
Children and young people under guardianship or special guardianship (otherwise than under the Act) [section 28] 150
Other provisions where particular rules apply to children or young people 151
13: Informal patients 155
Introduction 155
Informal admission [section 131] 155
Other provisions which apply to informal patients 155
14: Remands to hospital 157
Introduction 157
Remand to hospital for report [section 35] 157
Remand for treatment [section 36] 159
Courts' power to ask clinical commissioning groups for information about hospital places for defendants under 18 [section 39] 160
Remands by virtue of other legislation 161
Effect of remand under section 35 or 36 [sections 35(9), 35(10), 36(8) and 56] 161
Evidence to the courts on patients remanded to hospital under section 35 or 36 or given interim hospital orders [section 35(5), 36(4) and 38(5)] (actually 25.61-63) 162
15: Hospital orders 163
Introduction 163
Hospital orders [section 37] 163
Courts' power to ask for information about hospital places [section 39] 165
Restriction orders [section 41] 165
Interim hospital order [section 38] 166
Rights of appeal against conviction and sentence and associated duty on hospital managers [section 45 and various criminal justice measures] 166
Hospital order - authority to detain [section 40(1)] 167
Patients who abscond before being admitted under a hospital order [section 138] 167
Effect of unrestricted hospital orders on patients once detained [section 40(4)] 168
Effect of restricted hospital order on patients once detained [section 41] 168
Effect of a hospital order on existing authority to detain etc [section 40(5), 41(4) and section 55(4)] 169
Written evidence [section 54] 169
Power of the Secretary of State to reduce the 28 day period for making a hospital order [section 54A] 169
16: Hospital and limitation directions 171
Introduction 171
Hospital and limitation directions [section 45A] 171
Provisions in respect of hospital orders which also apply to hospital and limitation directions 172
Hospital direction - authority to detain [section 45B(1)] 173
Patients who abscond before being admitted under a hospital order [section 138] 173
Effect of hospital and limitation directions on patients once detained [section 45B(2)] 173
Limitation directions may be time-limited [section 50(2), (3) and (5)] 174
While a limitation direction is in force, patients may be removed to prison [section 50(1) and (5)] 174
While a limitation direction is in force, discharge by the Tribunal requires the consent of the Secretary of State [section 74] 175
Effect of removal to prison on hospital and limitation directions [section 50(1) and (5)] 175
17: Committal to Crown Court for restriction order 176
Introduction 176
Committal to hospital [section 43(1)] 176
Committal in custody [section 43] 176
Committal to hospital [section 44] 176
Effect of committal to hospital [section 44(3)] 177
Provisions in respect of hospital orders which also apply to committals to hospital [sections 44(3) and 51(4)] 177
Action for the Crown Court [section 43(2) and (3), 51(7)] 177
18: Interim hospital orders 179
Introduction 179
Interim hospital orders [section 38] 179
Duration and renewal of interim hospital orders [sections 38(2), (5) and (6) and 45A(8)] 180
Provisions in respect of hospital orders which also apply to interim hospital orders [section 40] 180
Interim hospital order - authority to detain [section 40(1) and (3)] 181
Absconding while subject to an interim hospital [section 38(7)] 181
Effect of interim hospital orders on patients once detained [section 38, 40 and 56] 181
19: Transfer of sentenced prisoners to hospital 182
Introduction 182
Transfer to hospital of sentenced prisoners [sections 47] 182
Restriction directions [section 49] 184
Patient to be transferred to hospital within 14 days [section 47(2)] 184
Effect of an unrestricted transfer direction [section 47(3)] 184
Effect of a restricted transfer direction [section 47(3) and 49] 184
Automatic expiry of restriction directions [section 50(2), (3) and (4)] 185
Return to prison [section 50(1)] 185
Discharge of restricted transfer direction patients by the Tribunal [section 74] 186
Effect of removal to prison on transfer direction and restriction direction [section 50(1)] 186
Effect of a transfer direction on existing authority to detain etc [section 40(5), 47(3) and 55(4)] 186
20: Transfer of unsentenced prisoners to hospital 188
Introduction 188
Transfer to hospital of unsentenced prisoners [section 48] 188
Restriction directions [section 49] 189
Effect of a transfer direction in respect of an unsentenced patient [section 48(3)] 190
Automatic expiry of transfer directions for unsentenced prisoners [sections 51(1), 52(1) and 53(1)] 190
Discharge by the Tribunal [section 74] 191
Magistrates' remand prisoners - further remands etc [section 52(2) to (7)] 192
Magistrates' remand prisoners - return to prison etc [section 52(5)] 192
Other remand prisoners - hospital orders in the defendant's absence [section 51(5)] 192
Other remand prisoners - return to prison etc [section 51(3) and (4)] 193
Civil prisoners and immigration detainees - return to custody [section 53] 194
21: Restricted patients 195
Introduction 195
Effect of restrictions [sections 41 and 42 and part 2 of schedule 1 in particular] 195
Absolute discharge - ending of restrictions and the associated authority for detention [section 42(1) and 73] 199
Conditional discharge [section 41(6), 42, 73 and 75] 199
Expiry of restrictions while associated authority for detention remains in force [section 41(4), 50(2) and (5)] 199
Secretary of State's power to lift restrictions while patients remain detained [section 42(1)] 200
Effect of expiry or lifting of restrictions on detained patients [section 41(4) and 55(4)] 200
Secretary of State's power to direct restricted patients to be taken to any place in Great Britain in the interests of justice etc [section 42(6)] 201
Related material 201
22: Other legislation under which part 3 remands, orders and directions may be made 202
Introduction 202
Defendants who are not fit to stand trial or who have been found not guilty by reason of insanity 202
Appeals and retrials 203
Prosecution appeals against decisions of certain appeal courts 205
Contempt of court 205
Other powers of the courts 205
Offenders transferred from overseas 206
Care, support and treatment in hospital 207
23: Medical treatment 208
Introduction 208
Patients to whom part 4 applies ('detained patients') [section 56] 208
Meaning of medical treatment for mental disorder [section 145] 209
Section 57, 58 and 58A treatments 209
Approved clinician or person in charge of the treatment 210
Second opinion appointed doctors [sections 57, 58, 58A and 119(2)] 210
The meaning of 'appropriate' [section 64(3)] 211
Medical treatment of detained patients without consent [section 63] 211
Treatment requiring consent and second opinion [section 57 and regulation 27] 211
Treatment requiring consent or second opinion [section 58 and 62A(2) and regulation 27] 212
Treatment requiring consent and/or a second opinion [section 58A and regulation 27] 215
Cases of urgency where sections 57, 58 and 58A do not apply-immediately necessary treatment [section 62] 218
Disapplication of sections 58 and 58A in respect of CTO patients recalled to hospital [section 62A] 219
Reporting to CQC on treatments approved by SOADs [section 61] 219
CQC's power to withdraw certificates [section 61(3) and 62(3)] 219
Summary of the requirements of sections 57, 58 and 58A 220
24: Medical treatment of CTO patients (part 4a) 221
Introduction 221
Definitions 221
Key requirements of part 4A [sections 64A and 64B] 221
Authority to treat - patients aged 16 or over [section 64C(2), 64D, 64G, 64J and 64K and regulation 28] 221
Authority to treat - patients under 16 [section 64E(6), 64F, 64G 64J and 64K)] 224
Certificate requirement - CTO patients of any age [sections 64B, 64C, 64E and 64H and regulation 28] 224
Exceptions to the certification requirement [sections 64B(3), 64C(4) to (9), 64E(3) to (5) and 64G] 225
CTO patients recalled to hospital [section 62A] 226
CTO patients in hospital without having been recalled 228
Withdrawal of part 4A certificates [section 64H] 228
Reports to CQC on treatment given in accordance with a part 4A certificate [section 64H(4) and 61(1)] 229
Leaving hospital 230
25: Leaving hospital (planned discharge and absence without leave) 231
Introduction 231
Leave of absence from hospital [section 17 and regulation 19] 231
Leave for Court Proceedings - restricted patients 232
Leave for emergency medical treatment - restricted patients 232
Duty to consider community treatment order before granting longer term leave [section 17(2A) and (2B)] 232
Recall from leave [section 17(4)] 233
Absence without leave [sections 18 and 21B and regulation 19] 233
Expiry and renewal of authority for detention [section 20 and regulations 13 and 26] 236
Patients absent without leave as deadline for renewal report approaches [section 21 and 21A and regulation 26] 237
Confirmation of detention of patients who have been absent without leave for more than 28 days [section 21B and regulations 14 and 26] 238
Patients who return from absence without leave and whose detention would otherwise have expired [section 21A and 21B and regulation 26] 239
Patients who are imprisoned etc [section 22 read with sections 18, 21 and 21A] 240
Reports to the Secretary of State for Justice on restricted patients [section 41(6) and 45A(3)] 241
Evidence to the courts on patients remanded to hospital under section 35 or 36 or given interim hospital orders [section 35(5), 36(4) and 38(5)] 241
26: Community treatment orders 243
Introduction 243
Definitions 243
Delegation of hospital managers' functions in relation to CTO patients [sections 32(3) and 142B and regulations 3, 19 and 26] 243
Eligible patients [section 17A and Schedule 1] 244
Criteria for CTO [section 17A] 244
Procedure for making a CTO [section 17A and regulation 6] 245
Conditions to be included in a CTO [section 17B and regulation 6] 245
Variation and suspension of conditions [section 17B(4) and (5), and regulation 6] 246
Effect of a CTO [section 17D] 246
Duty to inform nearest relatives about discharge onto CTOs [section 133] 247
Information for patients and nearest relatives about CTO [section 132A] 247
Information about independent mental health advocates for CTO patients [section 130D] 247
Recall of patients to hospital [section 17E and regulation 6] 248
Effect of recall to hospital [section 17E(6), 17F(6) and regulation 6] 249
Duty to give information to patients recalled to hospital [regulation 6(7)] 250
Transfer of recalled patients to another hospital [section 17F(2) and regulations 9 and 12] 250
Revocation of CTOs [section 17F(3) and (4) and regulation 6(8)] 251
Release from recall [section 17F(5) to (7) and 5(6)] 252
Recalled CTO patients who are absent without leave [section 18 and 21(4)] 253
Expiry and extension of CTOs [section 20A and 20B and regulations 13 and 26] 253
Patients absent without leave as deadline for extension report approaches [section 21 and 21A and regulations 14 and 26] 255
Confirmation of CTOs for patients who have been absent without leave for more than 28 days [section 21B and regulations 14(3) and 26)] 255
Patients who return from absence without leave and whose CTO would otherwise have expired [sections 21, 21A and 21B and regulation 26] 256
Patients who are imprisoned etc [section 22, read with sections 18, 21 and 21A] 257
Discharge of part 2 CTO patients by their nearest relatives [sections 23 and 25 and regulations 3 and 25] 258
Discharge of CTO patients by their responsible clinicians [section 23 and regulation 18] 259
Discharge of CTO patients by the hospital managers [section 23] 259
Discharge of CTO patients by the Tribunal [part 5] 259
Duty of managers to inform nearest relative of discharge of CTO patient [section 133] 260
Visiting and examination of patients in relation to use of powers of discharge [section 24)] 260
Discharge from a CTO - general points 260
Reassignment of responsibility for CTO patients [section 19A and regulations 17 and 26] 260
Effect of a CTO on new applications for admission or guardianship under part 2 [sections 6(4) and 8(5)] 261
Effect of new orders or directions under part 3 on CTO [section 40(5)] 262
27: Discharge 263
Introduction 263
Discharge by the responsible clinician [section 23 and regulation 18] 263
Discharge by the hospital managers [section 23] 263
Discharge of patients by their nearest relatives [sections 23 and 25 and regulations 3 and 25] 265
Duty of managers to inform nearest relative of discharge [section 133] 266
Discharge by the Tribunal [part 5] 266
Visiting and examination of patients in relation to use of powers of discharge [section 24] 267
Discharge - general points 267
Conditional discharge of restricted patients [section, 42, 73, and 75] 267
Recall to hospital [section 42(3) and (4)] 269
Applications and references to the Tribunal by and in respect of recalled patients [sections 70 and 75(1)(b)] 269
Ending of conditional discharge [sections 41, 42 and 75] 270
28: Guardianship 272
Introduction 272
Guardianship - general 272
Powers of guardians [section 8] 272
No power to detain 273
Routes into guardianship 274
Regulations about guardianship [section 9] 274
Minimum age for guardianship [sections 7 and 37] 274
Responsible local authority [section 34(3)] 274
Delegation of functions by local authorities [section 23 and regulation 21] 275
Grounds for applications for guardianship under part 2 of the Act [section 7] 275
Making an application for guardianship [sections 7 and 11 and regulations 3 and 5] 275
Local authority's duty to arrange for AMHP to consider making application [section 13] 276
AMHPs' duty to consult nearest relatives and nearest relatives' right to object [section 11] 276
Duty of AMHPs to make applications in certain cases [section 13] 277
Medical recommendations [section 12 and mutual recognition regulations] 277
Conflicts of interest [sections 11(1) and 12A and Conflict of Interest regulations] 278
Time limits for guardianship applications [sections 4, 6, 11 and 12] 279
Acceptance of guardianship applications by local authorities [section 8 and regulation 5] 280
Rectification of errors in guardianship applications [section 8(4)] 281
Guardianship orders [section 37] 281
Duty on local authorities to provide information to the court [section 39A] 283
Effect of a guardianship application or order on previous applications etc [sections 8(5), 40(5), 41(4) and 55(4)] 283
Duty of private guardian to appoint nominated medical attendant [section 9(2) and regulation 22] 284
Responsible clinician [section 34(1) and mutual recognition regulations] 284
Other duties of a private guardian [regulation 22] 284
Information for guardianship patients and their nearest relatives about discharge and the Tribunal [regulation 26] 285
Information about independent mental health advocacy for guardianship patients [section 130D] 285
Visits to guardianship patients [regulation 23 and mutual recognition regulations] 286
Absence without leave [section 18] 286
Expiry and renewal of authority for guardianship [section 20(3) and regulations 13 and 26] 287
Patients absent without leave as deadline for renewal report approaches [section 21 and 21A] 287
Confirmation of guardianship of patients who have been absent without leave for more than 28 days [section 21B and regulations 14 and 26] 288
Patients who return from absence without leave and whose guardianship would otherwise have expired [section 21A and 21B and regulation 26] 289
Patients who are imprisoned etc [section 22] 290
Discharge of part 2 guardianship patients by their nearest relatives [section 23] 290
Visiting and examination of patients in relation to use of powers of discharge [section 24)] 290
Discharge by the responsible clinician [section 23 and regulation 18] 290
Discharge by the local authority [section 23] 291
Discharge by the Tribunal [part 5] 291
Guardian no longer willing or able to act as such [section 10(1) and regulation 26] 291
Temporary guardians [section 10(2) and regulation 26] 292
Unsatisfactory private guardians [sections 10(3) and 31] 292
Transfers between guardians in other cases [section 19 and regulations 8 and 26] 292
Transfer from hospital to guardianship [section 19 and regulation 26] 293
Admissions to hospital of patients subject to guardianship [section 6(4), 37(4) and 40(4)] 293
Transfer of patients from guardianship to detention in hospital [regulation 8] 294
Transfers from England to Wales - applicable regulations [section 19 and regulation 10] 295
Local authority visits to patients under their guardianship in hospitals or care homes [section 116] 295
29: After-care 296
Introduction 296
Duty to provide after-care services [section 117(2) and (6)] 296
Eligible patients [section 117(1)] 296
Responsible after-care bodies [section 117(2E) and (3)] 297
Preparations for after-care - particularly where conditional discharge is in view [sections 73 and 117] 298
After-care and deprivation of liberty 298
After-care services during leave of absence 298
Duration of after-care services [section 117(2)] 299
No power to charge for after-care services 299
Professional responsibilities 300
30: Approval of practitioners to carry out functions under the Act 301
Introduction 301
Approved mental health professionals (AMHPs) [section 114] 301
AMHPs acting on behalf of local authorities [section 145(1AC)] 302
Approval by local authorities of people to act as AMHPs [section 114(3) and the AMHP regulations] 303
Approval of courses by Health and Care Professions Council [section 114ZA] 305
AMHPs approved in England but acting in Wales (and vice versa) [section 114(10)] 305
Section 12 approved doctors [sections 12, 12ZA and 12ZB and mutual recognition regulations] 306
Approved clinicians [sections 12ZA and 145] 307
Approved clinicians approved in England but acting in Wales (and vice versa) [section 142A and mutual recognition regulations] 307
31: Hospital managers 309
Introduction 309
Definition of hospital managers [section 145] 309
Functions of hospital managers 310
Delegation of hospital managers' functions [section 32(3), section 142B and regulation 3 and 19] 311
Fundamental errors in applications 312
Rectification of minor errors in applications [section 15 and regulation 4] 312
Replacement of insufficient medical recommendations [section 15(2) and (3) and regulation 4] 313
Rectification of errors in guardianship applications [section 8(4)] 315
32: Information for victims 316
Introduction 316
Victim Contact Scheme and the Victim's Code 316
33: Offences and protection for acts done 317
Introduction 317
Forgery, false statements etc [section 126] 317
Ill-treatment of patients [section 127] 317
Assisting patients to absent themselves without leave etc [section 128] 318
Obstruction [section 129] 318
Maximum penalties for offences 319
Prosecution of offences under the Act [section 130] 320
Other proceedings relating to the Act - protection for acts done [section 139] 320
Transfer of patients between jurisdictions 321
34: Transfer of patients from outside England and Wales 322
Introduction 322
Relevant sections of the Act 322
General rules applicable to transfers from all jurisdictions 322
Restricted patients (detained or conditionally discharged) 324
Arrangements for transfers 324
Record of transfer - managers' and guardians' duties [regulation 15] 324
Patients transferred to a CTO - responsible clinician's duty to set conditions [sections 80C and 85ZA and regulation 16] 325
Transfers from Scotland - further detail [sections 80B, 80C and 80D] 325
Transfer from Northern Ireland - further details [sections 82 and 82A] 327
Transfer from Isle of Man or the Channel Islands - further details [sections 85, 85ZA and 85A] 329
Offenders found insane in Isle of Man or the Channel Islands [section 84] 329
35: Transfer of patients to Scotland 331
Introduction 331
Purpose of transfers under the Act 331
Transfer of detained patients to Scotland [sections 80 and 92] 331
Requesting a transfer warrant for Scotland for a detained patient 332
Conveyance of detained patients to Scotland [section 80 and 137] 333
Effect of transfer of a detained patient [section 91] 333
Transfer of responsibility for conditionally discharged patients to Scotland [section 80A and 92] 333
Transfer of responsibility for patients on a CTO to Scotland [section 80ZA and 91] 334
Transfer of guardianship patients to Scotland 335
36: Transfer of patients to Northern Ireland 336
Introduction 336
Purpose of transfers under the Act 336
Transfer of detained patients to Northern Ireland [section 81 and 92] 336
Requesting a transfer warrant for Northern Ireland for a detained patient 337
Conveyance of detained patients to Northern Ireland [section 81 and 137] 337
Effect of transfer of a detained patient [section 91] 337
Transfer of responsibility for conditionally discharged patients to Northern Ireland [section 81A and 92] 338
Transfer of patients on a CTO to Northern Ireland [section 81ZA] 339
Transfer of guardianship patients to Northern Ireland [section 81] 339
Related material 340
37: Transfer to the Isle of Man or the Channel Islands 341
Introduction 341
Purpose of transfers under the Act 341
Transfer of detained patients to the Isle of Man or the Channel Islands [section 83 and 92] 341
Requesting a transfer warrant for the Isle of Man or the Channel Islands for a detained patient 342
Conveyance to the Isle of Man or the Channel Islands of detained patients [section 83 and 137] 343
Effect of transfer of a detained patient [section 91] 343
Transfer of responsibility for conditionally discharged patients to Isle of Man or the Channel Islands [section 83A and 92] 344
Transfer of responsibility for patients on a CTO to Isle of Man or the Channel Islands [section 83ZA] 344
Transfer of guardianship patients to Isle of Man or the Channel Islands [section 83] 345
Related material 345
38: Removal of foreign patients 346
Introduction 346
Purpose of these provisions 346
Secretary of State's power to authorise removal of patient [section 86] 346
Proposals for removal 346
Effect of Secretary of State's warrant 347
Effect of removal from England [section 91] 347
Alternative means of repatriation 347
Annex A: Key words and phrases used in this Guide 349
Annex B: List of Statutory Forms 367
Annex C: Related material 371
Annex D: Figures: written description 373
Annex E: Index by sections and schedules of the Act 382
Figure 1. Clarifications of the Mental Health Act 1983: Code of Practice 2015 20
Figure 2. Structure of the Mental Health Act 1983 24
Figure 3. Provisions to which the learning disability qualification applies 28
Figure 4. Identification of hospital managers 31
Figure 5. The rights of the nearest relative 37
Figure 6. Authorities to be notified by nearest relatives when they delegate functions or revoke delegation 44
Figure 7. Grounds on which an application for an acting nearest relative may be made 45
Figure 8. Duration of orders appointing acting nearest relatives 47
Figure 9. People who may apply for the discharge of an order appointing an acting nearest relative 49
Figure 10. Duty to provide patients with information about advocacy services 59
Figure 11. In which correspondence may be withheld 61
Figure 12. Authorities for the purposes of the Tribunal 66
Figure 13. Applications to the Tribunal 70
Figure 14. By patients detained for assessment [section 66] 71
Figure 15. By patients detained for treatment under section 3 [section 66] 72
Figure 16. By patients detained under unrestricted hospital orders [section 66 as applied by part 1 of Schedule 1, and section 69(2) to (5)] 73
Figure 17. Applications by patients detained under unrestricted transfer directions or hospital directions to which limitation directions no longer apply [section 66 as applied by part 1 of Schedule 1, and section 69(2)] 75
Figure 18. Applications by detained patients subject to restricted hospital orders [sections 69(2) and 70] 77
Figure 19. Applications by detained patients subject to hospital and limitation directions [sections 69(2) and 70] 79
Figure 20. Applications by detained patients subject to restricted transfer directions [sections 69(2) and 70] 81
Figure 21. Applications by part 2 CTO patients [section 66] 82
Figure 22. Applications by part 3 CTO patients and their nearest relatives [section 66 as applied by part 1 of Schedule 1 and modified by section 69(3) - (5)] 83
Figure 23. Applications by conditionally discharged restricted patients [section 75] 85
Figure 24. Applications by guardianship patients [section 66 and 69(1)] 86
Figure 25. Applications by nearest relatives of patients detained for treatment under section 3 [section 66] 87
Figure 26. Applications by nearest relatives of unrestricted part 3 detained patients [section 69(1) and (3) to (5)] 88
Figure 27. Applications by nearest relatives of part 2 CTO patients [section 66(1)(g)] 89
Figure 28. Applications by nearest relatives of guardianship patients [section 69(1)] 90
Figure 29. Applications by displaced nearest relatives of part 2 detained patients, part 2 CTO patients and guardianship patients [section 66(1)(h)] 91
Figure 30. Patients to whom the managers' duty to refer at six months applies 92
Figure 31. Circumstances in which hospital managers must refer patients to the Tribunal after the first six months 93
Figure 32. Unrestricted part 3 patients. start of the three year (or one year) period after which a referral may have to be made 94
Figure 33. Circumstances in which the Tribunal must discharge detained patients 97
Figure 34. Circumstances in which the Tribunal must discharge patients from a CTO 98
Figure 35. Circumstances in which the Tribunal must discharge patients from guardianship 99
Figure 36. Medical recommendations 111
Figure 37. Potential conflicts of interest for AMHPs 114
Figure 38. Potential conflicts of interest for doctors 115
Figure 39. Time limits for applications under sections 2 and 3 116
Figure 40. Time limits for emergency applications under section 4 117
Figure 41. Forms to be used for applications and medical recommendations 118
Figure 42. Patients to whom this chapter primarily applies 125
Figure 43. Time at which detention periods start 127
Figure 44. Summary of time limits for returning patients who are absent without leave or otherwise liable to be retaken 139
Figure 45. Retaking of patients who abscond to Scotland, Northern Ireland, the Isle of Man or the Channel Islands 143
Figure 46. Retaking of patients who have absconded to England and Wales (other than guardianship patients) 145
Figure 47. Other special rules affecting children or young people 151
Figure 48. SOAD role in certification child and adolescent detained patients 153
Figure 49. Other provisions which apply to informal patients 155
Figure 50. Criteria for remand for report under section 35 157
Figure 51. Duration, renewal and termination of remand for report under section 35 158
Figure 52. Criteria for remand for report under section 36 159
Figure 53. Duration, renewal and termination of remand for report under section 36 160
Figure 54. Criteria for making hospital orders under section 37 163
Figure 55. Criteria for imposing restriction orders 165
Figure 56. Criteria for making hospital and limitation directions 171
Figure 57. Criteria for committal to hospital 176
Figure 58. Criteria for making interim hospital orders 179
Figure 59. Criteria for transfer directions in respect of sentenced prisoners 182
Figure 60. Criteria for transfer directions in respect of unsentenced prisoners 188
Figure 61. Secretary of State restriction direction 189
Figure 62. Automatic expiry of transfer directions for unsentenced prisoners 191
Figure 63. Criteria for making a hospital order under section 51 193
Figure 64. Release and return to prison of other remand prisoners 193
Figure 65. Summary of main differences in application of provisions to restricted and unrestricted patients 195
Figure 66. Summary of special arrangements which only apply to restricted patients 197
Figure 67. Expiry of restrictions while authority for detention remains in place 200
Figure 68. Patients who are detained patients for the purposes of this chapter 208
Figure 69. Summary of types of treatment to which the special rules in sections 57, 58 and 58A apply 209
Figure 70. Conditions for giving treatment under section 58 213
Figure 71. Conditions for giving treatment under section 58A to detained patients aged 18 or over 215
Figure 72. Conditions for giving treatment under section 58A to patients aged under 18 216
Figure 73. Summary of requirements of sections 57, 58 and 58A 220
Figure 74. Summary of exemptions from part 4 certificate requirements for CTO and former CTO patients 228
Figure 75. Patients who may become CTO patients 244
Figure 76. Service of notices recalling CTO patients to hospital 248
Figure 77. Delegation of discharge decisions by hospital managers 264
Figure 78. Expiry of restrictions 270
Figure 79. Medical recommendations for guardianship 277
Figure 80. Time limits in respect of guardianship applications 279
Figure 81. Criteria for guardianship orders 282
Figure 82. Patients eligible for section 117 after-care 297
Figure 83. Main AMHP functions 301
Figure 84. Identification of hospital managers 309
Figure 85/Figure 86. Maximum penalties for offences under the Act 319
Figure 86/Figure 89. Sections of the Act dealing with cross border transfers to England 322
Figure 87/Figure 88. Transfers from Scotland. likely corresponding provisions 326
Figure 88/Figure 89. Transfers from Northern Ireland. corresponding provisions as set out in section 82 328
Figure 89/Figure 90. Transfers from Northern Ireland. likely corresponding provisions in other cases 328
Figure 90/Figure 91. Detained patients who may be transferred to Scotland 331
Figure 91. Detained patients who may be transferred to Northern Ireland 336
Figure 92. Transfer of a detained patient to Northern Ireland 338
Figure 93. Detained patients who may be transferred to the Isle of Man or Channel Islands 341
Figure 94. Treatment with medication for mental disorder of detained patients under the Act 374
Figure 95. Treatment with medication for mental disorder under the Act of CTO patients not recalled to hospital176 ('section 58 type treatment' under part 4A) 376
Figure 96. Treatment with medication for mental disorder under the Act of CTO patientsupon recall to hospital or the revocation of the CTO 379