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Mental Health Act 2007: Workbook
General Awareness Module
General Awareness Module
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Table of Contents
Introduction ..................................................................................................................1
About this Workbook ...............................................................................................1
How to use the workbook........................................................................................1
Module objectives ...................................................................................................2
Before you begin ... ......................................................................................................3
The background to and purpose of the Mental Health Act 2007 ..................................5
Why was this review necessary? ............................................................................5
The Mental Health Act 2007....................................................................................5
Key changes to the Mental Health Act 1983 ................................................................7
Mental disorder .....................................................................................................10
Appropriate medical treatment ..............................................................................12
Professional roles..................................................................................................14
Supervised community treatment..........................................................................18
Nearest relative .....................................................................................................22
Informal admission of patients aged 16 or 17........................................................24
Independent Mental Health Advocates .................................................................25
Electro-convulsive therapy ....................................................................................27
Power to "take and convey" ..................................................................................28
Places of safety.....................................................................................................30
Mental Health Act 1983 Code of Practice for Wales...................................................31
Overview ...............................................................................................................31
The guiding principles in the new Mental Health Code of Practice for Wales .......31
Changes to the Mental Capacity Act 2005 .................................................................33
Background...........................................................................................................33
What is a 'deprivation of a person's liberty'? .........................................................34
Standard and Urgent Authorisations .....................................................................35
Standard Authorisations........................................................................................35
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Urgent Authorisations............................................................................................37
Feedback to quiz ........................................................................................................38
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Acknowledgements
Produced by:
Walkgrove Ltd. 3 Enterprise Court, Hamilton Way, Mansfield, Notts. NG18 5BU
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Introduction
About this Workbook
This workbook is for those indirectly involved in the provision of mental health and
learning disability services. It will be useful for you if you work in services such as the
police, ambulances, or in a General Hospital, Accident and Emergency.
Its aim is to provide a general awareness of the changes to existing mental health and
mental capacity legislation following the implementation of the Mental Health Act 2007.
In particular, we will be looking at the changes that have been made to two Acts:
• Mental Health Act 1983
• Mental Capacity Act 2005
The content of the workbooks examines the ways in which these have been changed,
and examines some of the more important changes in practice that have resulted.
Except where noted otherwise in the workbook, these changes will come into effect on
3 November 2008.
The material in this workbook is consistent with the workshop module and has been
designed to provide support for those people who prefer to work on their own or are
unable to attend a workshop session. It is important to recognise that it is not guidance
and should not be used to inform legal decision making.
How to use the workbook
The workbook contains a series of practical activities designed to help you expand and
apply your skills and knowledge of the law and practice as it now stands. It is important
that you take time to do the activities as skill development depends on practice.
To gain the most benefit from this workbook:
• Allocate dedicated time to complete the workbook
• If possible, find somewhere quiet and without interruptions
• Ensure you have access to a copy of the Mental Health Act 1983 Code of
Practice for Wales
• Discuss your answers with a colleague to ensure you have explored the relevant
issues and you can relate them to your work.
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Module objectives
After studying this workbook you will be able to:
• Explain the background to and purpose of the Mental Health Act 2007
• Outline the following key changes to the Mental Health Act 1983:
• Definition of mental disorder
• Criteria for detention
• Professional roles
• Nearest relative
• Informal admission for 16 or 17 year olds with capacity
• Introduction of supervised community treatment (SCT)
• Transfer of persons between places of safety
• Advocacy
• Electro-convulsive therapy
• Identify the guiding principles of the Mental Health Act 1983 Code of Practice for
Wales and outline the importance of the Code when applying the Act
• Define the principal changes to the Mental Capacity Act 2005.
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Before you begin ...
Try to answer the following questions, then work through the workbook before checking
your answers. You will find the suggested answers at the end of the workbook.
You will have the opportunity to review and revise your answers (if you wish) before
checking them.
You may find out that you already know more about the Mental Health Act 2007 than
you thought. Alternatively, you may discover that some of the things you thought you
knew were inaccurate.
Yes No Not sure
1 The Mental Health Act 2007 replaces the Mental Health Act 1983.
2 The definition of mental disorder is being widened.
3 Learning disabilities are not mental disorders for the purposes of the 1983 Act unless they cause abnormally aggressive or seriously irresponsible behaviour.
4 The appropriate medical treatment test is just the "treatability test" by another name.
5 The appropriate medical treatment test enables the detention of people with personality disorders.
6 The Welsh Assembly Government wants approved mental health professionals to be health professionals employed by NHS trusts.
7 Supervised community treatment is only for people who need medication in the community.
8 A person does not have to be detained in hospital first for a community treatment order to be made.
9 A patient may replace the person acting as their nearest relative with someone else whenever they wish.
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10 Responsible clinicians will be hospital clinicians.
11 The new Mental Health Act 1983 Code of Practice for Wales is stronger than before.
12 An adult ward can be used for a child if it will meet the child’s needs.
13 The Mental Health Act 1983 takes precedence over the Mental Capacity Act 2005.
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The background to and purpose of the Mental Health Act 2007
In 1998 the UK Government announced its intention to review how mental health
legislation could be shaped to reflect contemporary patterns of care.
Why was this review necessary?
The UK Government considered that there were various reforms that were needed.
Amongst other things, their objectives included:
• To help ensure that people with serious mental disorders could be required,
where necessary, to receive treatment necessary to protect them and the public
from harm
• To simplify and modernise the definition of mental disorder and the criteria for
detention
• To bring mental health legislation into line with modern service provision by
allowing a broader range of professionals to carry out functions and by enabling
people to be treated in the community where appropriate
• To strengthen patient safeguards and tackle human rights incompatibilities.
The Mental Health Act 2007
Following the review, the existing legislative framework has been amended by the
Mental Health Act 2007 (the 2007 Act).
This Act has introduced amendments to several earlier Acts, specifically:
• The Mental Health Act 1983
The principal legislation concerned with the reception, care and treatment of
mentally disordered people remains the Mental Health Act 1983 (the 1983 Act).
The 1983 Act is largely concerned with the circumstances in which a person with
a mental disorder can be detained for treatment for that disorder without their
consent. It sets out the processes that must be followed, as well as the
safeguards for patients to ensure that they are not inappropriately detained or
treated without their consent.
Its main purpose is to ensure that people with serious mental disorders can be
treated irrespective of their consent where it is necessary to prevent them from
harming themselves or others.
Although the structure of the 1983 Act remains intact, some significant changes
have been made to many of its provisions by the 2007 Act.
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• The Mental Capacity Act 2005
The main amendments to the Mental Capacity Act introduced by the 2007 Act
provide procedures for authorising the deprivation of liberty of people resident in
hospitals or care homes who lack capacity for the decision to reside there, and
who are not subject to the mental health legislation safeguards. These are known
as the deprivation of liberty safeguards and are expected to commence in
England and Wales in April 2009.
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Key changes to the Mental Health Act 1983
As we have already noted, the 1983 Act is chiefly concerned with the circumstances in
which a person with a mental disorder can be detained for treatment for that disorder
without their consent.
Although the structure of the 1983 Act remains largely intact following the passing of the
2007 Act, several significant changes have been made to its provisions.
In summary these are:
• Definition of mental disorder
The legislation now defines mental disorder as “any disorder or disability of the
mind”. This new definition provides a single, simple definition rather than
specifying categories of disorder.
These amendments complement the changes to the criteria for detention.
• Appropriate medical treatment
If patients are to be detained for treatment under section 3 and related sections
of Part 3, there is an important addition to the criteria that appropriate medical
treatment must be available.
This means that a patient may be compulsorily detained (or have their detention
renewed) only if medical treatment is available for them which is appropriate
taking into account the nature and degree of their mental disorder and all the
other circumstances of their case.
At the same time, the previously used 'treatability test' has been removed.
• Supervised community treatment (SCT)
The 2007 Act introduces SCT for patients following a period of detention in
hospital for treatment; this will allow a small number of patients with a mental
disorder to live in the community whilst still being subject to certain conditions
under the 1983 Act, aimed at ensuring they continue with the medical treatment
that they need.
SCT can only follow an initial period of detention and treatment in hospital.
SCT replaces after-care under supervision (sometimes known as ‘supervised
discharge’) which is being abolished by the 2007 Act. The main difference is that
SCT 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
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if necessary.
The introduction of SCT also involves the creation of a new community treatment
order (CTO), which is covered by a new section in the 1983 Act (section 17A).
• Professional roles
The group of practitioners who can take on the functions previously performed by
the responsible medical officer (RMO) and the approved social worker (ASW)
has been broadened.
The role of responsible clinician (RC) has replaced that of RMO. The RC does
not need to be a consultant psychiatrist, but must be an approved clinician (AC).
The role of approved mental health professional (AMHP) has replaced that of
ASW. In addition to registered social workers, other mental health professionals
will be able to take on the role of AMHP after suitable training.
• Nearest relative
Patients now have a right to make an application to the county court to displace
their nearest relative and county courts are able to make such a displacement,
where there are grounds for doing so.
The provisions for determining the nearest relative have also been amended to
include civil partners amongst the list of relatives (alongside spouses) - this has
been the case since 1 December 2007.
• Treatment of children and young people
An important change concerns consent or refusal to informal admission made by
16 and 17 year old patients who have the capacity to consent. In such cases, the
individual's decision may no longer be overridden by a person who has parental
responsibility for them – this has been in force since 1 January 2008.
• Advocacy
A new requirement for independent mental health advocacy to be made available
for qualifying patients has been introduced.
Independent mental health advocates (IMHAs) provide patients with support and
help in areas such as:
• Understanding the conditions or restrictions to which they are subject and
any medical treatment that is given or proposed.
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• Understanding any rights which may be exercised, and help in exercising
those rights.
• Electro-convulsive therapy (ECT)
New safeguards have been introduced for patients concerning the use of ECT.
Chief among these is the abolition of the power to impose ECT on a detained
patient who has the capacity to consent, other than in an emergency situation.
• Powers to transfer patients
New powers have been introduced for transferring and conveying certain
patients, including:
• The power to "take and convey" a person received into guardianship to
the place where they are required to reside (from 3 November 2008).
• The power to transfer a person detained under sections 135 or 136 from
one place of safety to another (from 30 April 2008).
• Code of Practice for Wales
Finally, as a result of changes to the 1983 Act, the Welsh Ministers have decided
to issue a separate Mental Health Act 1983 Code of Practice for Wales, to which
those performing certain functions under the 1983 Act must have regard.
The Code includes a set of guiding principles which should be considered
whenever a decision has to be made about a course of action under the 1983
Act.
Let us now move on to look at each of these changes in a little more detail.
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Mental disorder
Definition of mental disorder
The definition of mental disorder has been amended to:
'any disorder or disability of the mind'.
This replaces the previous wording of 'mental illness, arrested or incomplete
development of mind, psychopathic disorder and any other disorder or disability of
mind'.
The 2007 Act also abolishes the four categories of mental disorder that were previously
used (i.e. mental illness, mental impairment, psychopathic disorder and severe mental
impairment).
Point to note
The fact that a person suffers from a mental disorder does not, in itself, mean that any
action can or should be taken in respect of them. Action can be taken only where
criteria are met.
Exclusions
There are some important exclusions from the conditions that would be classed as
mental disorders within the meaning of the Act.
Learning disability
While learning disability in general would come under the definition of 'mental disorder',
the legislation specifies that a person can only be detained for treatment, received into
guardianship or discharged onto SCT where their learning disability is associated with
abnormally aggressive or seriously irresponsible conduct.
However, a person with a learning disability can be detained for assessment, even in
the absence of such abnormally aggressive or seriously irresponsible conduct.
Point to note
The wording is very explicit that any abnormally aggressive or seriously irresponsible
conduct must be associated with a learning disability. It does not have to be caused by
it.
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Dependence on Alcohol or Drugs
Section 1(3) of the 1983 Act formerly said that the definition of mental disorder should
not be construed as implying that a person may be dealt with as suffering from mental
disorder "by reason only of promiscuity or other immoral conduct, sexual deviancy or
dependence on alcohol or drugs."
This has now been replaced with a single exclusion stating that “dependence on alcohol
or drugs is not considered to be a disorder or disability of the mind”.
Dependence on alcohol and drugs is regarded clinically as a mental disorder. However,
under the revised wording of the exclusion, no action can be taken under the 1983 Act
simply because a person is dependent on alcohol or drugs.
Point to note
This does not mean that such people are excluded entirely from the scope of the Act. A
person who is dependent on alcohol or drugs may also suffer from another mental
disorder arising as a result of that dependency which warrants action under the 1983
Act.
To summarise:
The new definition of mental disorder as 'any disorder or disability of the mind' means
much the same as the old definition. Remember that:
• The four categories of disorder have been abolished, so there may be a few
disorders now covered which previously were outside the scope
• The exclusions to mental disorder have been amended, and now only include
dependence on alcohol or drugs
• Learning disability is excluded (save with respect to assessments) unless
associated with abnormally aggressive or seriously irresponsible behaviour. The
effect is essentially the same as before.
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Appropriate medical treatment
Overview
The criteria that must be met before a patient can be subject to detention under section
3 of the 1983 Act remain generally much as before. Similar criteria also now apply to
the new provisions for SCT.
However, there is an important addition to the criteria for detention for treatment in that
'appropriate medical treatment' must be available for the patient. At the same time, the
previously used 'treatability test' has been removed.
Point to note
The appropriate medical treatment test does not apply to section 2 of the 1983 Act
(admission for assessment).
Applying the 'appropriate treatment' test
The new appropriate medical treatment test replaces the previously used 'treatability'
test. The treatability test required a judgement to be made on whether medical
treatment was 'likely to alleviate or prevent deterioration in the patient's condition'. This
requirement no longer applies.
The appropriate medical treatment test will only be met if medical treatment:
• is available to the patient in question, and
• is appropriate for them, given the nature and degree of the patient’s mental
disorder, and
• all other circumstances of the patient's case.
Let's look at some of those conditions in a little more detail.
� Availability
The test requires that appropriate treatment is actually available for the patient. It is
not enough for appropriate treatment to exist in theory for the patient's condition.
� What is meant by 'medical treatment'?
The definition of medical treatment (at section 145 of the 1983 Act) has been
amended to read:
"Medical treatment includes nursing, psychological intervention and specialist
mental health habilitation, rehabilitation and care".
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The Act also now stipulates that the purpose of medical treatment "shall be
construed as a reference to medical treatment the purpose of which is to alleviate,
or prevent a worsening of, the disorder or one or more of its symptoms or
manifestations".
Point to note
An important difference here is that this is about the purpose of the treatment, rather
than being about its likely outcome as in the previous 'treatability' test.
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Professional roles
Overview
A major change brought in by the 2007 Act is that it has broadened the group of
practitioners who can take on the roles which are central to the operation of the 1983
Act.
In particular:
• it replaces the role of the responsible medical officer (RMO) with that of the
responsible clinician (RC)
• it provides that an RC will be an approved clinician (AC) with overall
responsibility for a patient’s case.
• it replaces the role of the approved social worker (ASW) with that of the
approved mental health professional (AMHP).
Let us look at each of these new roles in turn in a little more detail.
Approved Clinicians (ACs)
In Wales, an AC is a person approved as such by the Welsh Ministers for the purposes
of the 1983 Act. Such approval has been delegated to Local Health Boards.
The professions whose members may be approved and the type of skill and experience
required have been set out in the Mental Health Act 1983 Approved Clinician Directions
2008 issued by the Welsh Ministers. These specify that for a person to be 'approved',
they must meet the following criteria:
• they fulfil the professional requirements
• they are able to demonstrate that they possess the relevant competencies; and
• they have completed within the last two years a course for the initial training of
approved clinicians.
To fulfil the professional requirements, a person must be one of:
• a registered medical practitioner
• or a chartered psychologist
• or a first level nurse whose field of practice is mental health or learning
disabilities nursing
• or an occupational therapist,
• or a registered social worker.
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Responsible Clinician
Under the 1983 Act, the RMO was the registered medical practitioner in charge of the
patient's treatment. The RMO had various designated functions, such as deciding when
patients could be discharged and allowed out on leave. In practice, RMOs have usually
been consultant psychiatrists.
Under the new system, the RC may be any practitioner provided that that person has
been approved for that purpose - i.e. an approved clinician (AC).
In addition to the functions which RCs have taken over from RMOs, they also have new
functions in relation to SCT.
Responsibilities under Part 2 of the Act
Where a patient is subject to compulsory admission to hospital or guardianship, the RC
has taken over the duties previously fulfilled by the RMO. The RC has also taken on a
similar role in respect of SCT.
The RC is responsible for renewing a patient's detention or extending their CTO. Before
furnishing a renewal report for detention, the RC must secure the written agreement of
a second professional. This second person must have been professionally concerned
with the patient’s medical treatment and not belong to the same profession as the RC.
Responsibilities under Part 3 of the Act
Where a patient is concerned in criminal proceedings, the RC has again taken over the
duties previously fulfilled by the RMO.
In addition, certain functions previously restricted to registered medical practitioners can
now be exercised also by ACs. For example, an AC may now 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.
Who will be the RC?
In all cases the RC will be the AC with overall responsibility for the patient’s case. This
is set out in section 34(1) of the 1983 Act.
If the RC is not qualified to make decisions about a particular treatment then another
appropriately qualified professional will take charge of that matter, with the RC
continuing to retain overall responsibility for the patient's case.
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For example, where a patient is receiving SCT, it is possible that a social worker who is
an AC will be named as their RC, being well placed to oversee the patient's progress
while living in the community. In such a case, there may well be a medical component
to the overall care plan, but the social worker acting as the RC, will not have to make
decisions on that particular aspect; an AC who is a registered medical practitioner will
take on that responsibility.
Bear in mind also that the person appointed as the RC may change over time in order
that the individual's needs continue to be met. Thus, in the example quoted, it is
possible that such a change would have occurred when the person was discharged
onto SCT, with the role moving from a registered medical practitioner who is an AC to a
social worker who is an AC.
Approved mental health professionals
Now let us move on to consider the role of the AMHP.
Functions of the AMHP
As has already been noted, the AMHP has taken over duties and functions of the ASW.
This includes functions such as:
• making applications for admission and detention in hospital under Part 2 of the
1983 Act
• making applications for guardianship.
Like RCs, the AMHPS also have certain new functions in relation to SCT.
Who may be an AMHP?
As well as social workers, AMHPs may be drawn from a wider group of professionals if
they have the right skills, experience and training. This means that in future first level
nurses, occupational therapists and chartered psychologists may be an AMHP.
Point to note
A registered medical practitioner is specifically prohibited from being approved to act as
an AMHP.
The intention is to ensure 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.
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How is an AMHP 'approved'?
Local Social Services Authorities (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
• meets requirements set out in Regulations (see below) setting out conditions for
approval, factors as to competency and requirements for training.
The Care Council for Wales must approve courses for the training of AMHPs in Wales,
regardless of the trainees' profession.
To fulfil the professional requirements set out in the Mental Health (Approval of Persons
to be Approved Mental Health Professionals) (Wales) Regulations 2008, a person must
be a:
• a registered social worker.
• or a chartered psychologist
• or a first level nurse whose field of practice is mental health or learning
disabilities nursing
• or an occupational therapist.
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Supervised community treatment
Overview
An important change brought about by the 2007 Act is the introduction of supervised
community treatment (SCT). This provides for some patients with a mental disorder to
live in the community while still being subject to powers under the 1983 Act to ensure
they continue with the medical treatment that they need.
An individual may be discharged onto SCT by way of a community treatment order
(CTO) being made. This is intended to ensure that they receive their treatment.
Only those patients who are detained in hospital for treatment (under section 3 or an
unrestricted order under Part 3 of the Act) can be discharged onto SCT. The Act refers
to patients on SCT as community patients.
Point to note
The aim of SCT is to break the cycle in which some patients leave hospital and do not
continue with their treatment. Their health then deteriorates and they require detention
again.
Patients who are discharged onto 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.
• The conditions will form part of the patient's CTO which is made by their RC.
Patients discharged onto SCT may be recalled to hospital for treatment should this
become necessary; this may be for either in-patient or out-patient care. 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.
The 2007 Act abolishes after-care under supervision (which is sometimes known as
ACUS or supervised discharge); SCT is one of the options that is available in its place.
The principal difference between ACUS and SCT is that SCT allows 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.
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Point to note
SCT 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.
Making a Community Treatment Order
Under the new arrangements, 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 Act) with
the agreement of an AMHP.
Criteria for the CTO
The RC and AMHP must be satisfied that the following criteria as set out in section 17A
of the Act are met:
(a) the patient is suffering from mental disorder of a nature or degree which makes it
appropriate for him or her to receive medical treatment
(b) it is necessary for the patient’s health or safety or for the protection of other
persons that the patient should receive such treatment
(c) subject to the patient being liable to be recalled ... such treatment can be
provided without the patient continuing to be detained in a hospital
(d) it is necessary that the responsible clinician should be able to exercise the power
under section 17E(1) to recall the patient to hospital
(e) appropriate medical treatment is available for the patient.
When making these decisions, the RC must consider the risk that the patient’s condition
might deteriorate after discharge from hospital. For example, this could happen as a
result of their refusing to receive the treatment they need.
Conditions of the CTO
The CTO will specify the conditions to which a community patient will be subject.
There are two conditions that must appear in all CTOs:
1. patients must make themselves available for medical examinations as required
for the purposes of determining whether the CTO should be extended
2. they must make themselves available for medical examinations to allow a
second opinion approved doctor (SOAD) to make a Part 4A certificate.
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Further conditions will be set as required with the intention of:
• ensuring that the patient receives medical treatment
• and/or preventing risk of harm to the patient’s health or safety
• and/or protecting other persons.
The RC and an AMHP must agree the conditions. The RC may subsequently vary the
conditions, or suspend any of them without the agreement of an AMHP although to do
so immediately after the making of a CTO would be considered poor practice if there
had been no change in the patient’s circumstances.
How long does the CTO last for?
A CTO may initially last for up to 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 a CTO to be extended, the RC must examine the patient and provide a report to the
hospital managers confirming that the necessary criteria are met. 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.
Point to note
These are exactly the same criteria as when the CTO was first made. Thus the RC can
only make a report to extend the CTO if the criteria for the CTO still apply.
Recall to hospital
A community patient may be recalled temporarily to hospital if the RC decides:
1. that the patient needs to receive treatment for his or her mental disorder in a
hospital, and
2. that without this treatment there would be a risk of harm to the patient’s health or
safety, or to other people.
Both conditions must be met.
The RC can recall a patient only for a maximum of 72 hours without revoking the CTO.
Revocation of the CTO
If the RC decides that the patient meets the normal criteria for detention for treatment in
hospital, the RC may revoke the patient’s CTO. This will require an AMHP's agreement
that it is appropriate. If the AMHP does not agree, the patient will remain on SCT.
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Where a CTO is revoked in this way, the authority to detain the patient is revived,
exactly as if the patient had never been a community patient, except that it is
considered a new period of detention and the patient has the normal rights of appeal.
Signpost
Chapter 30 of the Code of Practice for Wales gives specific guidance on SCT.
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Nearest relative
Role of the patient's nearest relative
The 1983 Act provides a role for the patient's nearest relative.
Under the legislation, the nearest relative has certain rights in connection with the care
and treatment of a mentally disordered patient, including
• the right to apply for admission to hospital
• the right to block an admission for treatment
• the right to discharge a patient from detention in hospital or SCT
• the right to certain information that has been given to the patient.
Point to note
The 2007 Act has not made any changes to the role and functions of the nearest
relative (except to extend the safeguard for patients who have been discharged onto
SCT).
Who may act as the nearest relative?
Section 26 of the 1983 Act included a list of persons who may act in this role:
• husband or wife
• son or daughter
• father or mother
• brother or sister
• grandparent
• grandchild
• uncle or aunt
• nephew or niece.
The person appointed will usually be the highest in the list, starting with any spouse or,
if there is none, the eldest son or daughter, and so on.
The 2007 Act has updated this list of persons who may act in the role of nearest relative
by giving a civil partner equal status to a husband or wife - this has been the case since
1 December 2007.
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Displacing the nearest relative
The 1983 Act allowed various parties to apply to the county court for an order displacing
the nearest relative on grounds such as:
• the nearest relative is too ill to act
• the nearest relative unreasonably blocks admission
• the nearest relative has discharged (or is likely to discharge) the patient without
due regard.
The 2007 Act has changed this in two ways.
1. Not a suitable person
The grounds on which an application for displacement may be made have been
extended, and now includes provisions that “the nearest relative of the patient is
not a suitable person to act as such”. Thus a nearest relative who has, for
example, in the past subjected a patient to physical abuse may be displaced by
the county court from exercising the majority of the rights of the nearest relative.
2. Right for a patient to apply
There is a new right for a patient to apply to the court for the nearest relative to
be displaced on the same grounds available to other applicants.
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Informal admission of patients aged 16 or 17
Changes have been made to the rules governing the informal admission of patients
aged 16 or 17 years to hospital or registered establishment for treatment for mental
disorder. These changes came into force on 1 January 2008.
Where such patients have the capacity to consent to the making of such arrangements,
they may consent or refuse consent, and their decision cannot be overridden by a
person with parental responsibility for them.
This means that:
• If the patient consents, they can be admitted to hospital and their consent cannot
be overridden by a person with parental responsibility refusing to consent to
admission
• If the patient does not consent, they cannot be informally admitted on the basis
of consent from a person with parental responsibility.
In the latter case, the young person could nevertheless be admitted to hospital for
compulsory treatment under the 1983 Act if they meet the relevant criteria.
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Independent Mental Health Advocates
A new independent mental health advocacy scheme has been introduced for qualifying
patients. Under these arrangements, independent mental health advocates (IMHAs)
provide patients with support.
Qualifying patients
Patients who qualify for support from an IMHA are:
• persons who are liable to be detained under the Act
(excluding those subject to sections 4, 5(2), 5(4), 135 or 136)
• patients subject to guardianship
• community patients (i.e. those on SCT)
Qualifying patients must be informed that they are eligible for the services provided by
an IMHA as soon as is practicable. An IMHA may meet with a patient on the request of
the patient, the nearest relative, the RC or an AMHP.
How does the IMHA support the patient?
The support available to a qualifying patient includes help in obtaining information about
and understanding:
• the patient’s rights under the Act
• the provisions of the Act under which the patient qualifies for an IMHA
• any conditions or restrictions which affect the patient
• the medical treatment the patient is receiving, or is being proposed or discussed,
and the reasons for it
• the legal authority for providing the treatment
• the requirements of the Act which apply to treatment.
The IMHA may also support the patient to exercise their rights under the Act, including
by representing them. IMHAs may also support patients in other ways to ensure they
can participate in decisions about care and treatment.
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Communication and access to records
Where a patient has the capacity to consent and does so, an IMHA has a right to
access and inspect relevant hospital or local authority records relating to the patient.
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 support the advocate will provide to the
patient.
Who can act as an IMHA?
The Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2008
set out that no-one may act as an IMHA unless they have been approved by the Local
Health Board or are employed by a provider of advocacy services to act as an IMHA.
Before approving any person as an IMHA a Local Health Board must be satisfied that
the person:
• has appropriate experience or training
• is of integrity and good character
• will act independently of any person who instructs them to act as an IMHA or is
professionally concerned with the medical treatment of the qualifying patient.
Point to note
The Welsh Ministers issue guidance from time to time as to what constitutes
'appropriate experience or training'.
Signpost
Chapter 25 of the Code of Practice for Wales gives more guidance on the role of the
IMHA.
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Electro-convulsive therapy
Section 58A has been inserted into the 1983 Act by the 2007 Act.
This introduces new safeguards for patients concerning the use of electro-convulsive
therapy (ECT), including the abolition of the power to impose ECT on a detained patient
who has the capacity to consent. This does not prevent such treatment being given in
emergency situations under section 62.
Need for consent
Section 58A provides that ECT can only be given when the patient:
• has capacity to decide and gives consent, or
• is incapable of giving consent.
More detail is given in these circumstances below.
Patients capable of consent
The patient's consent must be certified by an appropriate professional:
• Where a detained adult patient consents to treatment with ECT, their consent
must be certified by either the AC in charge of their treatment or by a Second
Opinion Appointed Doctor (often referred to as a SOAD).
• Where a patient under 18 years of age who is either a detained patient or an
informal patient not subject to a CTO consents to such treatment, a SOAD must
certify their consent and that it is appropriate for the treatment to be given.
Point to note
These rules are subject to the provisions about urgent treatment in section 62 of the
1983 Act. This is to ensure that a patient, including one who is not consenting, can still
receive such treatment in an emergency if there is insufficient time to apply the above
procedures.
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Power to "take and convey"
Section 18 of the 1983 Act already included a provision that a patient who is for the time
being liable to be detained can be taken into custody and returned to the place where
they are required to reside, as named in their care plan.
This provision related normally to situations where the patient is 'absent without leave'.
They may, for example, have absented themselves from hospital or simply failed to
return to hospital after a period of leave of absence.
This provision remains in place, but the 2007 Act has made some important additions to
it, specifically relating to:
• community patients, and
• the interpretation of 'returned'.
Let's look briefly at each of those.
Community patients
Under a new subsection (2A) of section 18, the power has been extended to include
community patients. Thus, a community patient who has been recalled to hospital can
be taken into custody and returned to the hospital.
'Returned' includes the first time
A new subsection 7 of section 18 provides that a reference to a patient’s being
'returned' to a place where they are required to be means that the patient can be taken
there for the first time.
It is therefore not confined to their being returned after absconding or failing to return
voluntarily.
Point to note
This latter change covers all patients under the 1983 Act, including those subject to
guardianship.
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Who can exercise this power?
The power to 'take and convey' the patient may be exercised by:
• an AMHP
• an officer on the staff of the hospital
• a constable (in effect any police officer)
• anyone authorised in writing by the RC or the hospital managers.
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Places of safety
Existing powers of removal to a place of safety
The 1983 Act, prior to amendment, had already conferred on the police powers to
remove a person to a place of safety.
Under section 135(1) the police can, on the authority of a magistrate, enter premises
and remove to a place of safety a person who:
• is thought to have a mental disorder, and
• has been or is being ill-treated or neglected, or
• if living alone, is unable to care for themselves.
Under section 135(2) the police can, on the authority of a magistrate, enter premises (if
need be by force) and remove a patient who is liable under the 1983 Act to be taken or
retaken into custody.
Under section 136 the police can remove from a public place to a place of safety a
person who:
• appears to have a mental disorder, and
• appears to be in immediate need of care or control.
Removal under section 136 may take place if the police officer believes it necessary in
the interests of that person, or for the protection of others.
Under these sections, the person can be detained at the place of safety for up to 72
hours.
New power to transfer
The 2007 Act has amended both section 135 and section 136 so as to enable a person
detained at a place of safety to be transferred to another place of safety. Their detention
remains subject to the overall time limit of 72 hours.
Point to note
A place of safety for this purpose is defined in section 135(6) of the 1983 Act and
includes a hospital, a care home, a police station or other suitable place.
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Mental Health Act 1983 Code of Practice for Wales
Overview
The 1983 Act sets out the legal framework that underpins the detention and treatment
of patients under compulsion.
The Mental Health Act 1983 Code of Practice for Wales (the Code) provides guidance,
including good practice, as to how the Act should be applied. It also sets out principles
which should inform decisions under the Act.
The Code highlights, where relevant, the connections between the 1983 Act and other
legislation, such as the Mental Capacity Act 2005.
The 1983 Act provides that practitioners must have regard to the Code, more
particularly in relation to admitting persons to hospitals or guardianship, community
patients and in providing medical treatment to patients. Failure to do so could give rise
to legal challenge. A court, in reviewing any departures from the Code, will scrutinise
the reasons for the divergence to ensure there is sufficient and convincing justification
in such circumstances.
The guiding principles in the new Mental Health Code of Practice for Wales
Chapter 1 of the Code provides a set of nine guiding principles which should be
considered whenever a decision has to be made about a course of action under the Act.
The principles work together to form a balanced set of considerations which should
inform all decision-making.
Point to note
All of the other chapters of the Code of Practice should be read in the light of these
principles.
In the Mental Health Act 1983 Code of Practice, the nine guiding principles are grouped
together under three broad categories.
The empowerment principles
1. Patient well-being and safety should be at the heart of decision-making.
2. Retaining the independence, wherever practicable, and promoting the recovery of the
patient should be central to all interventions under the Act.
3. Patients should be involved in the planning, development and delivery of their care
and treatment to the fullest extent possible.
4. Practitioners performing functions under the Act should pay particular attention to
ensuring the maintenance of the rights and dignity of patients, and their carers and
families, while also ensuring their safety and that of others.
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The equity principles
5. Practitioners must respect the diverse needs, values and circumstances of each
patient.
6. The views, needs and wishes of patients’ carers and families should be taken into
account in assessing and delivering care and treatment.
7. Practitioners should ensure that effective communication takes place between
themselves, patients and others.
The effectiveness and efficiency principles
8. Any person made subject to compulsion under the Act should be provided with
evidence based treatment and care, the purpose of which should be to alleviate, or
prevent a worsening of, that person's mental disorder, or any of its symptoms or
manifestations.
9. Practitioners should ensure that the services they provide are in line with the Welsh
Assembly Government’s strategies for mental health and learning disability.
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Changes to the Mental Capacity Act 2005
Background
The Mental Capacity Act 2005 has been amended to provide additional safeguards for
people whose care or treatment necessarily involves a deprivation of liberty, but who
are not, or cannot be, detained under the Mental Health Act 1983.
Essentially, a hospital or care home must now seek authorisation from a ‘supervisory
body’ in order to be able to deprive someone of their liberty in such circumstances.
Such authorisation may be either 'standard' or 'urgent'.
These safeguards are referred to as 'deprivation of liberty safeguards'. They have been
introduced to the Mental Capacity Act 2005 through the relevant amendments made by
the Mental Health Act 2007. It is expected that these will come into force in April 2009.
They come into play when:
• someone who has a mental disorder, and
• who lacks capacity to make decisions for themselves,
• is (or is to be) deprived of their liberty
• in a hospital or care home
except where that person:
• is detained under the provisions of the Mental Health Act 1983, or
• is under 18 years of age.
Where all the above conditions are met:
• the hospital or care home (which is referred to as a 'managing authority') must
seek authorisation for its actions from a 'supervisory body'.
• without such authorisation being granted, the deprivation of liberty may not
proceed.
Point to note
In Wales, the supervisory body for persons in hospital will be a Local Health Board
(LHB) unless a primary care trust (PCT) commissions the relevant care and treatment,
in which case the PCT itself will be the supervisory body.
For persons in a care home, the supervisory body will be the local authority for that
area.
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Authorisation for the deprivation of liberty will be given by the supervisory body only if it
is satisfied that:
• it is in the person's best interests, and
• there is no less restrictive alternative available.
The deprivation may continue only for the shortest period that is necessary.
What is a 'deprivation of a person's liberty'?
Deprivation of liberty is not specifically defined in the Mental Capacity Act 2005.
This means that the legal interpretation of deprivation of liberty will in the end be a
question for the courts, as decided in cases brought before them.
There can be no simple definition that would apply in all cases:
• it will depend very much on the circumstances of the particular individual.
• although it is a fine distinction, the person must definitely have been deprived of
their liberty; if their liberty has been only restricted, then their case will not come
within these safeguards.
Based on existing case law, the following factors might well be considered by the courts
to be relevant when considering whether or not a deprivation of liberty is occurring,
rather than just a restriction:
• the person is not allowed to leave the home or hospital.
• the person has no, or very limited, choice about their life within the care home or
hospital.
• the person is prevented from maintaining contact with the world outside the care
home or hospital.
Practically, this means that the question of whether a person is being deprived of their
liberty will need to be kept under review and addressed explicitly whenever a change is
made to their care plan.
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Standard and Urgent Authorisations
Standard Authorisations
Qualifying requirements
Before a managing authority applies to the supervisory body for a standard
authorisation to detain a person as a resident in a hospital or care home in
circumstances which amount to deprivation of their liberty, it must be satisfied that the
individual appears to meet the qualifying requirements.
There are six requirements against which the case must be assessed:
1. The age requirement
The person must be aged 18 or over. The deprivation of liberty safeguards only apply to
people aged 18 or over. For people under the age of 18, different safeguards apply.
2. The mental health requirement
The person must be suffering from a mental disorder within the meaning of the 1983
Act. However, this is not an assessment to determine whether the person requires
mental health treatment.
3. The mental capacity requirement
The person must lack capacity to decide whether or not they should be a resident in the
hospital or care home.
4. The best interests requirement
The deprivation of liberty sought must be:
• in the best interests of the person
• necessary in order to prevent harm to him or her
• a proportionate response to the likelihood of suffering harm and the seriousness
of that harm.
5. The eligibility requirement
In summary, a person is ineligible under these safeguards if they are already subject to
the Mental Health Act in one of the following circumstances:
• they are actually detained in hospital under the main powers of detention in the
Act
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• they are on leave of absence from detention or subject to guardianship, SCT or
conditional discharge and in connection with that are subject to a measure which
would be inconsistent with the authorisation if granted.
6. The 'no refusals' requirement
The purpose of the no refusals assessment is to establish whether authorisation would
conflict with other existing authority for decision-making for that person.
This might be the case, for example, if:
• the authorisation is for the purposes of treatment or care covered by a valid and
applicable advance decision by the person, or
• it would conflict with a valid decision by an attorney or a deputy on their behalf.
If there is a conflict, the no refusals assessment qualifying requirement will not be met
and authorisation for deprivation of liberty may not be given.
Assessments
The managing authority of a hospital or care home must request authorisation from the
supervisory body if a person is to be deprived of their liberty as a resident in that
hospital or care home.
The supervisory body will then conduct a series of assessments to verify that the
person meets the six qualifying requirements. These assessments must be made as
soon as possible after the application.
If any of the assessments conclude that the person does not meet the criteria, the
supervisory body must turn down the request for authorisation.
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Urgent Authorisations
When is an urgent authorisation appropriate?
The managing authority can issue itself an urgent authorisation for deprivation of liberty
where it:
• is required to make a request to the supervisory body for a standard
authorisation, but believes that the need for a person to be deprived of liberty is
so urgent that it is appropriate to begin the deprivation before the request is
made, or
• has made a request for a standard authorisation but believes that the need for a
person to be deprived of liberty has now become so urgent that it is appropriate
to begin the deprivation before the request is dealt with by the supervisory body.
This means that an urgent authorisation can never be issued without a request for a
standard authorisation being made.
How long does an urgent authorisation last?
An urgent authorisation can only last for a maximum of 7 days unless in exceptional
circumstances it is extended to 14 days by the supervisory body.
The supervisory body may grant a request to extend an urgent authorisation for up to a
further 7 days if there are exceptional reasons why it has not been possible to decide on
a request for standard authorisation and it is essential that detention continues.
An urgent authorisation ceases to be in force at the end of the period specified or earlier
if a decision is reached on the application for a standard authorisation.
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Feedback to quiz
You will remember that at the start of this workbook there was a quiz designed to test
how much you already knew about the Mental Health Act 2007.
Here are the suggested answers.
Before you check your answers against them, you might like quickly to go through the
quiz again to see whether you would now answer any of the questions differently.
Suggested answers
1. The Mental Health Act 2007 replaces the Mental Health Act 1983.
No, it doesn’t!
Basic mental health legislation remains the Mental Health Act 1983 and the 2007
Act just amends it. The 1983 Act has been amended before; for example, the
Mental Health (Patients in the Community) Act 1995 which introduced after-care
under supervision.
2. The definition of mental disorder is being widened.
No.
The new definition “any disorder or disability of the mind” means the same as the
old definition, it’s just simplified. The key point is that the new definition is simpler
and easier to understand, but it should not lead to an increase in compulsion.
3. Learning disabilities are not mental disorders unless they cause abnormally
aggressive or seriously irresponsible behaviour.
No.
The learning disability qualification in section 1 of the Act as amended excludes
learning disabilities unless they are “associated with” (not “causing”) abnormally
aggressive or seriously irresponsible behaviour. The qualification only applies to
certain sections (but not section 2 or section 136, for example). The effect is
basically the same as now.
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4. The appropriate medical treatment test is just the "treatability test" by another
name.
No, it isn’t.
The treatability test focused on the “likelihood” of the outcome of treatment. The
appropriate medical treatment test does not require anyone to say what is likely
to happen; it is about availability. The new test applies equally to all groups of
patients (though not to all patients, because it’s not part of the criteria for section
2, for example).
5. The appropriate medical treatment test enables the detention of people with
personality disorders.
Yes, although that was already the case, but the new test does have practical
effects.
Doctors making recommendations for detention in hospital will need to know in
advance where the patient is likely to be detained.
6. The Welsh Assembly Government wants approved mental health professionals
to be health professionals employed by NHS trusts.
No, the Act and the resulting secondary legislation give choice. Local Social
Services Authorities (LSSAs) can decide who to appoint from specified
professional groups – it is permissive legislation. Although approved mental
health professionals can only perform their functions if they are acting on behalf
of a LSSA, LSSAs cannot tell approved mental health professionals what
decisions to reach.
An LSSA has responsibility for ensuring that an approved mental health
professional service is provided. It will approve people to perform these functions
on the basis of their competence and training rather than simply on the basis of
their professional grouping.
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7. Supervised community treatment is only for people who need medication in the
community.
No it is not. “Medical treatment” goes much wider than medication and there are
many other treatments that may be required.
A person can be required to accept medication in the community. However, the
introduction of supervised community treatment does not confer any new powers
for someone to be forcibly treated in their own home.
It remains possible for a patient to be given medication by force in their own
home, but only if they lack capacity to consent to it and (unless an attorney or
deputy consents for them) only if it’s immediately necessary and proportionate to
the risk of harm they would otherwise face.
8. A person does not have to be detained in hospital first for a community treatment
order to be made.
Yes, they do.
A patient can only be discharged onto supervised community treatment if they
are first detained for treatment either under section 3 or a relevant unrestricted
Part 3 order. When a patient is discharged onto supervised community
treatment, a community treatment order is made by the responsible clinician with
the agreement of an approved mental health professional.
9. A patient may replace the person acting as their nearest relative with someone
else whenever they wish.
No, although there is a new right for a patient to apply for the nearest relative to
be displaced on the same grounds that were previously available to other
applicants. There is also a new ground for displacement which is available to all
applicants.
County courts may make an order to displace a nearest relative where there are
reasonable grounds for doing so.
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10. Responsible clinicians will be hospital clinicians.
No, there is nothing in the legislation (or elsewhere) to suggest that this should
be the case.
The Mental Health Act 1983 Code of Practice for Wales is quite explicit that in
appointing a responsible clinician, the primary consideration must be the
individual needs of the patient concerned.
Furthermore, the needs of the patient may well change over time, so it is
important that the suitability of the responsible clinician is kept under review.
Consequently, the responsible clinician can change as often (and as soon as)
necessary.
Note also that it is not just doctors who may act as responsible clinicians.
11. The new Mental Health Act 1983 Code of Practice for Wales is stronger than
before.
No, its status is essentially the same as now.
The Act sets out the legal framework and the Code of Practice provides the
principles and guidance on how the framework should be applied in practice.
Departures from the Code of Practice could give rise to legal challenge and a
court, in reviewing any departure from the Code, will scrutinise the reasons for
the departure to ensure there is sufficiently convincing justification in the
circumstances. It is good practice to ensure any such reasons are appropriately
evidenced.
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12. An adult ward can be used for a child if it will meet the child’s needs
No, not exactly. Although the provisions in the 2007 Act which amend the 1983
Act in this area have not yet commenced, because of Welsh Assembly
Government guidance from 2002, hospital managers already have a duty to
make sure that the environment is suitable having regard to the patient’s age
(and subject to the patient’s needs).
This means that, generally, hospital managers should choose an environment
that is suitable for a patient of this age, unless there is some factor that suggests
otherwise.
That could be a specific need of the patient (e.g. an age-suitable environment
would not be therapeutically-suitable) – or an overriding need (e.g. an age
suitable hospital environment is not available). But if the needs could be equally
well meet in an age suitable environment or an unsuitable one – then there is a
duty to use the age suitable one.
Point to note
This amendment to the 1983 Act is not commencing in November 2008 but will take
effect at a later date.
13. The Mental Health Act 1983 takes precedence over the Mental Capacity Act
2005.
No, except where one or the other says so. Beware of generalisations.
That said an approved mental health professional could not make an application
under section 3 if using the deprivation of liberty safeguards under the Mental
Capacity Act (when they commence) instead would be just as safe and effective.
And before making an application for assessment under section 2 or
guardianship or making a community treatment order, practitioners should
always consider if the Mental Capacity Act meets a patient’s needs or better
meets them than the 1983 Act .
The 1983 Act refers to treatment for mental disorder only, and does not affect
treatment and decisions about other health and welfare matters to which the
framework of the Mental Capacity Act applies.
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How well did you do?
Do not worry if you got some of them wrong or if you realise now that you started out
with some misconceptions. The whole purpose of this workbook has been to help you
improve your knowledge and understanding of these important changes.