Website of the Department of Health

The secondary legislation in question consists of the:

• Mental Health (Hospital, Guardianship and Treatment) Regulations 2008
• Mental Health Act 1983 (Independent Mental Health Advocates) Regulations
• Mental Health (Approval of Persons to be Approved Mental Health Professionals) (England) Regulations 2008
• Mental Health Act 1983 (Approved Clinician) Directions 2008
• Mental Health (Conflicts of Interest) (England) Regulations 2008
• Mental Health (Mutual Recognition) (England and Wales) Regulations 2008
• Mental Health Act 2007 (Commencement No [to be inserted] and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008; and
• Mental Health (Nurses) (England) Order 2008

The Mental Health (Hospital, Guardianship and Treatment) Regulations 2008 are essentially an update of the current Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983. They include regulations relating to supervised community treatment, nearest relatives and forms of medical treatment which are subject to special safeguards under the Act, which are similar in purpose or subject matter to the existing regulations. New and revised forms will also be required for updated regulations. These will be used when making or recording certain important decisions under the Act (eg applications to have people detained.)

The approved clinician directions and approved mental health professional regulations have been developed from preliminary draft secondary legislation that we put on the Department’s website to illustrate how these powers might be used. There has already been wide input to the development of them both.

Secondary legislation relating to supervised community treatment, mutual recognition of approved clinicians and transitional arrangements for people receiving after-care under supervision reflects statements of intent which were posted on the Department’s website in January this year.

We can introduce secondary legislation in these areas because Parliament has given the Secretary of State specific powers in the primary legislation (ie the 2007 Act) to make regulations, directions and orders on matters which require little or no detailed Parliamentary scrutiny.

An overview of the purpose of the 2007 Act can be found on the Department of Health website.

To see this document please click on the link below to the Mental Health Act 2007 – overview.  

Regulations are used to specify technical or administrative details which govern how the relevant provisions of the Act are to be done in practice The regulations on which we are consulting are all subject to what is known as “negative resolution.” This means that they will have to be laid before Parliament so that either House of Parliament can object.

Directions also have the force of law are made on matters which Parliament agrees do not require any form of Parliamentary scrutiny – either because they are straightforward or non-controversial. Directions are made by the Secretary of State. The directions on which we are consulting relate to the approval of people to act as approved clinicians.

An example of an order is a commencement order, which brings legislation into force on a particular date. In addition to commencing part of the 2007 Act, the order abolishing after-care under supervision will keep some of its provisions in place for a short period to allow time for appropriate arrangements to be made for people who are on after-care under supervision when it comes into force.

For each piece of secondary legislation we have identified one or more specific points on which we would be particularly grateful to receive views. The issues in question are outlined just before the text of the relevant secondary legislation; but your comments do not need to be confined to these questions. Comments will be welcome on any aspect of this draft secondary legislation.

The draft secondary legislation amplifies the changes that the 2007 Act is making to the law on mental health. It does not introduce any substantive additional regulatory burdens. Therefore we believe that the Regulatory Impact Assessment for the Mental Health Act 2007 as a whole, covers this secondary legislation as well. This can be access via the link to the 'Regulatory Impact Assessment Revised in June 2007' below. However, we would welcome your views on this conclusion and on the equality impact assessment which can be accessed via the link to the equality impact assessment below.

Please sent comments on the content of the consultation documents to:

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