Clause 29
Mental Health Bill [Lords]
4:45 pm
Ann Winterton (Congleton, Conservative)
With this it will be convenient to discuss the following: New clause 1—Independent mental health advocacy —
‘(1) The 1983 Act is amended as follows.
(2) After section 59 insert—
“59A Independent mental health advocacy etc.,
(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available to qualifying patients.
(2) The help available under the arrangements must include—
(a) help in obtaining information about and understanding—
(i) what medical treatment is being provided to the patient,
(ii) why it is being provided,
(iii) under what authority it is being provided,
(iv) the requirements of this Act which apply in connection with the patient’s treatment, and
(v) the rights which can be exercised by or in respect of him under this Act, and
(b) help (by way of representation or otherwise) in exercising those rights.
(3) An independent mental health advocate authorised by a patient or his nearest relative on his behalf may at any reasonable time, for the purpose of providing, in accordance with the arrangements, help requested by the patient or his nearest relative, meet the patient in private.
(4) The appropriate authority may by regulations provide that a person may act as an independent mental health advocate only—
(a) if requirements specified in the regulations are met in respect of him; or
(b) if requirements specified in the regulations are met in respect of any person with whom arrangements are made for him to act as an independent mental health advocate; or
(c) in circumstances otherwise specified in the regulations.
(5) In making arrangements under this section, the appropriate authority must have regard to the principle that the provision of help under the arrangement should, so far as practicable, be independent of any person responsible for the patient’s treatment.
(6) This section applies in respect of the following patients—
(a) a patient who is liable to be detained by virtue of an application for admission for assessment or an application for admission for treatment under Part II of this Act;
(b) a community patient;
(c) a patient who is removed to a place of safety within the meaning of section 135—
(i) in the execution of a warrant under section 135; or
(ii) by a constable under section 136,
(d) an accused person within the meaning of section 35 remanded under that section to hospital for a report on his mental condition;
(e) an accused person within the meaning of section 36 remanded under that section to hospital for treatment;
(f) a patient in respect of whom there is in force—
(i) a hospital order,
(ii) a transfer direction,
(iii) a hospital direction,
(g) a patient, not being liable to be detained under this Act, who is asked to consent to any form of treatment to which section 57 applies.’.
New clause 2—Duty to inform patient of the right of access to an advocate—
‘(1) The 1983 Act is amended as follows—
(2) After section 59A, inserted by this Act, insert—
“59B Duty to inform patient of advocacy provision
(1) The appropriate authority shall have a duty to inform a qualifying patient of the right to seek the services of an independent mental health advocate as soon as is reasonably practicable after the patient becomes a qualifying patient and thereafter, at reasonable intervals—
(a) at all points where decisions are made about care and treatment;
(b) on the use of interventions to manage behaviour;
(c) in any case where an allegation of abuse, including offences relating to sections 38 to 41 of the Sexual Offences Act 2003, is made by a qualifying patient.
(2) In any case where it is proposed that treatment specified by regulations made by the Secretary of State pursuant to section 58(1)(a) should be given to a patient, the appropriate authority shall have a duty to inform, or as the case may be, remind the patient of the right to seek the services of an independent mental health advocate—
(a) before the patient is asked to consent to the specified treatment; or
(b) before a certificate has been given under section 58(3)(b).
(3) In the case of a patient who is a qualifying patient by the virtue of section 59A(6)(g) the appropriate authority shall have a duty to inform, or as the case may be, remind the patient of the right to seek the services of an independent mental health advocate before he is given any form of treatment to which section 57 applies.’.
New clause 15—Advanced decision (nearest relative)—
‘(1) The 1983 Act is amended as follows.
(2) After section 26(4) insert—
“(4A) Where a patient has made an advance decision with regard to the choice of a relative or other person to be his nearest relative, his nearest relative shall, subject to the power of the court under section 29 to appoint an acting nearest relative be determined by giving preference to that choice.
(4B) ‘Advance decision’ means a decision made by a patient (‘P’), after he has reached 18 and when he has capacity to do so and in contemplation that he shall become subject to any act or decision exercisable under the provisions of this Act that his choice of nearest relative shall take precedence over the provisions of subsection (3).
(4C) For the purposes of subsection (4A) a decision may be regarded as expressing a choice of nearest relative even though expressed in layman’s terms.
(4D) P may withdraw or alter an advance decision at any time when he has capacity to do so.
(4E) A withdrawal (including a partial withdrawal) need not be in writing.
(4F) An alteration of an advance decision need not be in writing.
(4G) An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to P unless the decision is at the material time valid.
(4H) An advance decision is not valid if P—
(a) has withdrawn the decision at a time when he had capacity to do so, or
(b) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.
(4I) A decision or statement complies with this subsection only if—
(a) it is in writing,
(b) it is signed by P or by another person in P’s presence and by P’s direction,
(c) the signature is made or acknowledged by P in the presence of a witness, and
(d) the witness signs it, or acknowledges his signature, in P’s presence.
(4J) The court may make a declaration as to whether an advance decision—
(a) exists; and
(b) is valid;
(4K) Nothing in an apparent advance decision stops a person—
(a) providing life-sustaining treatment, or
(b) doing any act he reasonably believes to be necessary to prevent a serious deterioration in P’s condition, while a decision as respects any relevant issue is sought from the court.”.’.
New clause 20—Nearest relative (named persons)—
‘(1) Section 26 of the 1983 Act (“definitions of relative” and “nearest relative”) is amended as follows.
(2) In the cross-heading preceding Section 26 after “functions of relatives” insert “, persons acting as relatives”.
(3) Before subsection (1) insert—
“(A1) In this Part of the Act “named person” means any person—
(a) described in subsection (1) below; or
(b) not described in subsection (1) below who is the patient’s carer;
who has been nominated by the patient in accordance with subsection (1A) below.
(B1) In this Part of the Act “carer” has the same meaning as in Section 1(1)(a) of the Carers and Disabled Children Act 2000.”.
(4) After subsection (1) insert—
“(1A) A person is a named person in accordance with this subsection if—
(a) the nomination is signed by the nominator and the named person;
(b) the nominator’s and named person’s signatures are witnessed by two prescribed persons;
(c) each prescribed person certifies that, in the opinion of the prescribed person, the nominator—
(i) understands that the effect of nominating a person to be the named person will give him the role of nearest relative; and
(ii) has not been subjected to any undue influence in making the nomination;
(d) each prescribed person certifies that, in the opinion of the prescribed person, the named person—
(i) understands and is capable of performing the functions of the nearest relative; and
(ii) has not been subjected to any undue influence in agreeing to the nomination;
(e) the nomination has been forwarded to and registered with the local social services authority;
(f) in this part a prescribed person is—
(i) an Approved Mental Health Professional,
(ii) an Approved Clinician,
(iii) a provider of reserved legal service,
(iv) an Independent Mental Capacity Advocate.
(1B) A nomination under subsection (1A) above may be revoked by the nominator in accordance with subsection (1D) below.
(1C) The nomination of a named person is revoked in accordance with this subsection if—
(a) the revocation is signed by the nominator;
(b) the nominator’s signature is witnessed by a prescribed person;
(c) the prescribed person certifies that, in the opinion of the prescribed person, the nominator—
(i) understands the effect of revoking the appointment of a person as named person; and
(ii) has not been subjected to any undue influence in making the revocation.
(1D) The nomination of a named person shall be effective notwithstanding the nominator’s becoming, after making the nomination, incapable.
(1E) A person nominated under subsection (1) above may decline to be the nominator’s named person by giving notice to—
(a) the nominator; and
(b) the local social services authority in which the nominator resides,
to that effect.”.
(5) For subsection (3) substitute—
“(3) In this Part of the Act, subject to the provisions of this section and to the following provisions of this Part of this Act, the “nearest relative” means, in descending order—
(a) the named person,
(b) the person first described in subsection (1) above who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the halfblood and the elder of eldest of two or more relatives described in any paragraph of that subsection being preferred to the other or others of those relatives, regardless of sex.”.
(6) In Section 26(4) after “his nearest relative”, insert “under subsection 3(b) above”.
(7) In Section 26(5) leave out “(3)” and insert “(3)(b)”.’.
New clause 21—Independent mental health advocate—
‘(1) The 1983 Act is amended as follows.
(2) After Section 59 insert—
“59A Independent mental health advocate
(1) The appropriate authority shall have a duty to arrange for assistance to be provided from independent mental health advocates to be available to patients—
(a) detained under this Act, or
(b) subject to a compulsory treatment order,
at the end of the compulsory period of their treatment.
(2) Assistance provided under subsection (1) shall ensure that each of the following matters is addressed—
(a) help is available to patients in obtaining comprehensible information about—
(i) the medical treatment available to them in the community and access to such treatment,
(ii) social and care support in the community and access to such support, and
(b) help is available to patients to exercise their rights and entitlements in accessing treatment.
(3) The Secretary of State may by regulations specify the qualifications necessary for a person to act as an independent mental health advocate.”’.
New clause 24—Independent mental health advocacy (young persons)—
‘After section 125 of the 1983 Act insert—
“125C Independent mental health advocacy (young persons)
(1) The appropriate authority must arrange, to such extent as it considers necessary to meet all reasonable requirements, for help from persons to be known as independent mental health advocates, to be available for patients aged 18 years or under.
(2) The help available under the arrangements must include—
(a) help in obtaining information about and understanding of—
(i) what medical treatment is being provided to the patient;
(ii) why it is being provided;
(iii) under what authority it is being provided;
(iv) the requirements of this Act which apply in connection with the patient’s treatment; and
(v) the rights which can be exercised by or in respect of him under this Act; and
(b) help (by way of representation or otherwise) in exercising those rights.”.’.