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Mental Health Act 2007 (Commencement No. 3) Order 2007: action for NHS bodies and local social services authorities
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Last modified date:26 September 2007
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Gateway reference:8805
The changes
The Mental Health Act 2007 (Commencement No. 3) Order 2007 brings into effect a number of amendments to the Mental Health Act 1983 and the Mental Capacity Act 2005.
Most of the provisions come into force on 1 October 2007 but two, relating to civil partners as nearest relative (section 26) and consent for young people aged 16 or 17 (section 43), come into force on later dates to allow service providers time to prepare for the change.
Five of the changes are substantive:
- providing for civil partners to be patients’ nearest relatives for the purposes of the Act (and giving them equal status with spouses)
- increasing the maximum penalty for ill-treatment or neglect of patients from 2 to 5 years
- requiring all future restriction orders made by the higher courts when ordering the detention of mentally disordered offenders in hospital to be made without limit of time, so the special restrictions they impose are only lifted when the Secretary of State for Justice or the Mental Health Review Tribunal is satisfied they are no longer needed to protect the public from serious harm
- allowing 16 or 17 year olds to refuse to be admitted to hospital for mental health treatment, even if their parents are willing to consent: this is so that these young people do not end up in effect detained in hospital against their will, but without the protections given to people who are formally detained under the Mental Health Act.
- making a small change to the rules about eligibility for help from independent mental capacity advocates under the Mental Capacity Act 2005, so that a few people who would otherwise have been excluded will now be covered.
The order also commences some more technical provisions:
- allowing the General Social Care Council and the Care Council for Wales to start making the rules they need to make to approve training courses for would-be approved mental health professionals in due course
- putting right an omission in the Act in relation to hospitals vested in Local Health Boards in Wales
- putting beyond doubt the powers of the mental health review tribunal when hearing applications from conditionally discharged patients subject to hospital and limitation directions (which the Crown Court can give at the same time as passing a prison sentence, in order to detain mentally disordered offenders in hospital) .
Action
NHS bodies and local social services authorities will need to identify patients who are likely to be affected by the changes to the law on civil partners as nearest relatives and consent for young people aged 16 or 17 and make arrangements to ensure that they are implemented immediately they come into effect:
Civil partners as nearest relative
Starting on Saturday 1 December civil partners will have the same status as a husband or wife when determining a patient’s nearest relative. This change is brought in by section 26 of the Mental Health Act 2007 which amends section 26 and section 27 of the Mental Health Act 1983. The past actions of the previous nearest relative are to be treated in the same way as in any of the other circumstances in which a nearest relative is replaced by another person who is subsequently placed higher in the list of nearest relatives. The responsibilities of hospital managers, Approved Social Workers and Local Social Services Authorities to the new nearest relative are to be undertaken according to the legal requirements of the 1983 Act.
As a result of this amendment, a number of people will become the nearest relative of their civil partners in place of the person who was previously the nearest relative, especially if the civil partnership is less than 6 months old.
Action:
The managers of hospitals detaining patients under the Mental Health Act will need to check whether that applies to any of their patients. PCTs and local authority social services authorities will need to check if it applies to any supervised after-care or guardianship patients for whom they are responsible.
Consent to informal admission of patients aged 16 or 17
Starting on Tuesday 1 January 2008 16 and 17 year olds who do not consent to their informal admission to hospital for the treatment of mental disorder cannot be admitted to hospital for such treatment on the basis of consent from someone with parental responsibility for them. This change is brought in by section 43 of the Mental Health Act 2007 which amends section 131 of the Mental Health Act 1983.
This means that where a young person aged 16 or 17, who has the capacity to make a decision on their health care, decides that they do not want to consent to treatment for mental disorder, the young person cannot be admitted to hospital for that treatment unless they meet the conditions to be detained under the Mental Health Act 1983 as amended, even if a person with parental responsibility is prepared to consent.
It also means that where a young person aged 16 or 17, who has the capacity to make a decision on their health care, consents to being admitted to hospital for treatment for mental disorder they should be treated as an informal patient in accordance with section 131 of the Mental Health Act 1983 as amended even if a person with parental responsibility is refusing consent.
Action: Primary care trusts and NHS trusts should ensure that their consent policies and protocols are updated to take account of this change
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