(1) This section has effect where a transfer direction has been given in respect of any such person as is described in paragraph (a) of section 48(2) above and that person is in this section referred to as “the detainee”.
(2) The transfer direction shall cease to have effect when the detainee’s case is disposed of by the court having jurisdiction to try or otherwise deal with him, but without prejudice to any power of that court to make a hospital order or other order under this Part of this Act in his case.
(3) If the Secretary of State is notified by the responsible clinician , any other approved clinician or the appropriate tribunal at any time before the detainee’s case is disposed of by that court—
(a) that the detainee no longer requires treatment in hospital for mental disorder; or
(b) that no effective treatment for his disorder can be given at the hospital to which he has been removed,
the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed, and on his arrival at the place to which he is so remitted the transfer direction shall cease to have effect.
(4) If (no direction having been given under subsection (3) above) the court having jurisdiction to try or otherwise deal with the detainee is satisfied on the written or oral evidence of the responsible clinician—
(a) that the detainee no longer requires treatment in hospital for mental disorder; or
(b) that no effective treatment for his disorder can be given at the hospital to which he has been removed,
the court may order him to be remitted to any such place as is mentioned in subsection (3) above or , subject to section 25 of the Criminal Justice and Public Order Act 1994, released on bail and on his arrival at that place or, as the case may be, his release on bail the transfer direction shall cease to have effect.
(5) If (no direction or order having been given or made under subsection (3) or (4) above) it appears to the court having jurisdiction to try or otherwise deal with the detainee—
(a) that it is impracticable or inappropriate to bring the detainee before the court; and
(b) that the conditions set out in subsection (6) below are satisfied,
the court may make a hospital order (with or without a restriction order) in his case in his absence and, in the case of a person awaiting trial, without convicting him.
(6) A hospital order may be made in respect of a person under subsection (5) above if the court—
(a) is satisfied, on the written or oral evidence of at least two registered medical practitioners, that
(i) the detainee is suffering from mental disorder of a nature or degree which makes it appropriate for the patient to be detained in a hospital for medical treatment; and
(ii) appropriate medical treatment is available for him; and
(b) is of the opinion, after considering any depositions or other documents required to be sent to the proper officer of the court, that it is proper to make such an order.
(7) Where a person committed to the Crown Court to be dealt with under section 43 above is admitted to a hospital in pursuance of an order under section 44 above, subsections (5) and (6) above shall apply as if he were a person subject to a transfer direction.
52 Further provisions as to persons remanded by magistrates’ courts.
(1) This section has effect where a transfer direction has been given in respect of any such person as is described in paragraph (b) of section 48(2) above; and that person is in this section referred to as “the accused”.
(2) Subject to subsection (5) below, the transfer direction shall cease to have effect on the expiration of the period of remand unless the accused is sent in custody to the Crown Court for trial or to be otherwise dealt with.
(3) Subject to subsection (4) below, the power of further remanding the accused under section 128 of the Magistrates’ Courts Act 1980 may be exercised by the court without his being brought before the court; and if the court further remands the accused in custody (whether or not he is brought before the court) the period of remand shall, for the purposes of this section, be deemed not to have expired.
(4) The court shall not under subsection (3) above further remand the accused in his absence unless he has appeared before the court within the previous six months.
(5) If the magistrates’ court is satisfied, on the written or oral evidence of the responsible clinician—
(a) that the accused no longer requires treatment in hospital for mental disorder; or
(b) that no effective treatment for his disorder can be given in the hospital to which he has been removed,
the court may direct that the transfer direction shall cease to have effect notwithstanding that the period of remand has not expired or that the accused is sent to the Crown Court as mentioned in subsection (2) above.
(6) If the accused is sent to the Crown Court as mentioned in subsection (2) above and the transfer direction has not ceased to have effect under subsection (5) above, section 51 above shall apply as if the transfer direction given in his case were a direction given in respect of a person falling within that section.
(7) The magistrates’ court may, in the absence of the accused, send him to the Crown Court for trial under section 51 or 51A of the Crime and Disorder Act 1998 if—
(a) the court is satisfied, on the written or oral evidence of the responsible clinician , that the accused is unfit to take part in the proceedings; and
(b) ... the accused is represented by an authorised person.
53 Further provisions as to civil prisoners and persons detained under the Immigration Acts.
(1) Subject to subsection (2) below, a transfer direction given in respect of any such person as is described in paragraph (c) or (d) of section 48(2) above shall cease to have effect on the expiration of the period during which he would, but for his removal to hospital, be liable to be detained in the place from which he was removed.
(2) Where a transfer direction and a restriction direction have been given in respect of any such person as is mentioned in subsection (1) above, then, if the Secretary of State is notified by the responsible clinician , any other approved clinician or the appropriate tribunal at any time before the expiration of the period there mentioned—
(a) that that person no longer requires treatment in hospital for mental disorder; or
(b) that no effective treatment for his disorder can be given in the hospital to which he has been removed,
the Secretary of State may by warrant direct that he be remitted to any place where he might have been detained if he had not been removed to hospital, and on his arrival at the place to which he is so remitted the transfer direction and the restriction direction shall cease to have effect.
(1) The registered medical practitioner whose evidence is taken into account under section 35(3)(a) above and at least one of the registered medical practitioners whose evidence is taken into account under sections 36(1), 37(2)(a), 38(1) 45A(2) and 51(6)(a) above and whose reports are taken into account under sections 47(1) and 48(1) above shall be a practitioner approved for the purposes of section 12 above by the Secretary of State , or by another person by virtue of section 12ZA or 12ZB above, as having special experience in the diagnosis or treatment of mental disorder.
(2) For the purposes of any provision of this Part of this Act under which a court may act on the written evidence of any person, a report in writing purporting to be signed by that person may, subject to the provisions of this section, be received in evidence without proof of the following—
(a) the signature of the person; or
(b) his having the requisite qualifications or approval or authority or being of the requisite description to give the report.
(2A) But the court may require the signatory of any such report to be called to give oral evidence.
(3) Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the person who is the subject of the report, then—
(a) if that person is represented by an authorised person , a copy of the report shall be given to that authorised person ;
(b) if that person is not so represented, the substance of the report shall be disclosed to him or, where he is a child or young person, to his parent or guardian if present in court; and
(c) except where the report relates only to arrangements for his admission to a hospital, that person may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by or on behalf of that person.
54A Reduction of period for making hospital orders.
(1) The Secretary of State may by order reduce the length of the periods mentioned in sections 37(4) and (5) and 38(4) above.
(2) An order under subsection (1) above may make such consequential amendments of sections 40(1) and 44(3) above as appear to the Secretary of State to be necessary or expedient.
(1) In this Part of this Act—
“authorised person” means a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the exercise of a right of audience (within the meaning of that Act);
“child” and “young person” have the same meaning as in the Children and Young Persons Act 1933;
“civil prisoner” has the meaning given to it by section 48(2)(c) above;
“guardian”, in relation to a child or young person, has the same meaning as in the Children and Young Persons Act 1933;
“place of safety”, in relation to a person who is not a child or young person, means any police station, prison or remand centre, or any hospital the managers of which are willing temporarily to receive him, and in relation to a child or young person has the same meaning as in the Children and Young Persons Act 1933;
“responsible clinician”, in relation to a person liable to be detained in a hospital within the meaning of Part 2 of this Act, means the approved clinician with overall responsibility for the patient's case.
(2) Any reference in this Part of this Act to an offence punishable on summary conviction with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any enactment relating to the imprisonment of young offenders.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Any reference to a hospital order, a guardianship order or a restriction order in section 40(2), (4) or (5), section 41(3) to (5), or section 42 above or section 69(1) below shall be construed as including a reference to any order or direction under this Part of this Act having the same effect as the first-mentioned order; and the exceptions and modifications set out in Schedule 1 to this Act in respect of the provisions of this Act described in that Schedule accordingly include those which are consequential on the provisions of this subsection.
(5) Section 34(2) above shall apply for the purposes of this Part of this Act as it applies for the purposes of Part II of this Act.
(6) References in this Part of this Act to persons serving a sentence of imprisonment shall be construed in accordance with section 47(5) above.
(7) Section 99 of the Children and Young Persons Act 1933 (which relates to the presumption and determination of age) shall apply for the purposes of this Part of this Act as it applies for the purposes of that Act.
(1) Section 57 and, so far as relevant to that section, sections 59 to 62 below apply to any patient.
(2) Subject to that and to subsection (5) below, this Part of this Act applies to a patient only if he falls within subsection (3) or (4) below.
(3) A patient falls within this subsection if he is liable to be detained under this Act but not if—
(a) he is so liable by virtue of an emergency application and the second medical recommendation referred to in section 4(4)(a) above has not been given and received;
(b) he is so liable by virtue of section 5(2) or (4) or 35 above or section 135 or 136 below or by virtue of a direction for his detention in a place of safety under section 37(4) or 45A(5) above; or
(c) he has been conditionally discharged under section 42(2) above or section 73 or 74 below and he is not recalled to hospital.
(4) A patient falls within this subsection if—
(a) he is a community patient; and
(b) he is recalled to hospital under section 17E above.
(5) Section 58A and, so far as relevant to that section, sections 59 to 62 below also apply to any patient who—
(a) does not fall within subsection (3) above;
(b) is not a community patient; and
(c) has not attained the age of 18 years.
57 Treatment requiring consent and a second opinion.
(1) This section applies to the following forms of medical treatment for mental disorder—
(a) any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue; and
(b) such other forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State.
(2) Subject to section 62 below, a patient shall not be given any form of treatment to which this section applies unless he has consented to it and—
(a) a registered medical practitioner appointed for the purposes of this Part of this Act by the regulatory authority(not being the responsible clinician (if there is one) or the person in charge of the treatment in question) and two other persons appointed for the purposes of this paragraph by the regulatory authority(not being registered medical practitioners) have certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it; and
(b) the registered medical practitioner referred to in paragraph (a) above has certified in writing that it is appropriate for the treatment to be given.
(3) Before giving a certificate under subsection (2)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment but, of those persons—
(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
(b) neither shall be the responsible clinician (if there is one) or the person in charge of the treatment in question.
(4) Before making any regulations for the purpose of this section the Secretary of State shall consult such bodies as appear to him to be concerned.
58 Treatment requiring consent or a second opinion.
(1) This section applies to the following forms of medical treatment for mental disorder—
(a) such forms of treatment as may be specified for the purposes of this section by regulations made by the Secretary of State;
(b) the administration of medicine to a patient by any means (not being a form of treatment specified under paragraph (a) above or section 57 above or section 58A(1)(b) below) at any time during a period for which he is liable to be detained as a patient to whom this Part of this Act applies if three months or more have elapsed since the first occasion in that period when medicine was administered to him by any means for his mental disorder.
(2) The Secretary of State may by order vary the length of the period mentioned in subsection (1)(b) above.
(3) Subject to section 62 below, a patient shall not be given any form of treatment to which this section applies unless—
(a) he has consented to that treatment and either the approved clinician in charge of it or a registered medical practitioner appointed for the purposes of this Part of this Act by the regulatory authority has certified in writing that the patient is capable of understanding its nature, purpose and likely effects and has consented to it; or
(b) a registered medical practitioner appointed as aforesaid (not being the responsible clinician or the approved clinician in charge of the treatment in question) has certified in writing that the patient is not capable of understanding the nature, purpose and likely effects of that treatment or being so capable has not consented to it but that it is appropriate for the treatment to be given.
(4) Before giving a certificate under subsection (3)(b) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient’s medical treatment but, of those persons—
(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
(b) neither shall be the responsible clinician or the approved clinician in charge of the treatment in question.
(5) Before making any regulations for the purposes of this section the Secretary of State shall consult such bodies as appear to him to be concerned.
(1) This section applies to the following forms of medical treatment for mental disorder—
(a) electro-convulsive therapy; and
(b) such other forms of treatment as may be specified for the purposes of this section by regulations made by the appropriate national authority.
(2) Subject to section 62 below, a patient shall be not be given any form of treatment to which this section applies unless he falls within subsection (3), (4) or (5) below.
(3) A patient falls within this subsection if—
(a) he has attained the age of 18 years;
(b) he has consented to the treatment in question; and
(c) either the approved clinician in charge of it or a registered medical practitioner appointed as mentioned in section 58(3) above has certified in writing that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it.
(4) A patient falls within this subsection if—
(a) he has not attained the age of 18 years; but
(b) he has consented to the treatment in question; and
(c) a registered medical practitioner appointed as aforesaid (not being the approved clinician in charge of the treatment) has certified in writing—
(i) that the patient is capable of understanding the nature, purpose and likely effects of the treatment and has consented to it; and
(ii) that it is appropriate for the treatment to be given.
(5) A patient falls within this subsection if a registered medical practitioner appointed as aforesaid (not being the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question) has certified in writing—
(a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment; but
(b) that it is appropriate for the treatment to be given; and
(c) that giving him the treatment would not conflict with—
(i) an advance decision which the registered medical practitioner concerned is satisfied is valid and applicable; or
(ii) a decision made by a donee or deputy or by the Court of Protection.
(6) Before giving a certificate under subsection (5) above the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment but, of those persons—
(a) one shall be a nurse and the other shall be neither a nurse nor a registered medical practitioner; and
(b) neither shall be the responsible clinician (if there is one) or the approved clinician in charge of the treatment in question.
(7) This section shall not by itself confer sufficient authority for a patient who falls within section 56(5) above to be given a form of treatment to which this section applies if he is not capable of understanding the nature, purpose and likely effects of the treatment (and cannot therefore consent to it).
(8) Before making any regulations for the purposes of this section, the appropriate national authority shall consult such bodies as appear to it to be concerned.
(9) In this section—
(a) a reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient;
(b) “valid and applicable”, in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act;
(c) a reference to a donee is to a donee of a lasting power of attorney (within the meaning of section 9 of that Act) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act; and
(d) a reference to a deputy is to a deputy appointed for the patient by the Court of Protection under section 16 of that Act, where the deputy is acting within the scope of his authority and in accordance with that Act.
(10) In this section, “the appropriate national authority” means—
(a) in a case where the treatment in question would, if given, be given in England, the Secretary of State;
(b) in a case where the treatment in question would, if given, be given in Wales, the Welsh Ministers.
Any consent or certificate under section 57 , 58 or 58A above may relate to a plan of treatment under which the patient is to be given (whether within a specified period or otherwise) one or more of the forms of treatment to which that section applies.
(1) Where the consent of a patient to any treatment has been given for the purposes of section 57 , 58 or 58A above, the patient may, subject to section 62 below, at any time before the completion of the treatment withdraw his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
(1A) Subsection (1B) below applies where—
(a) the consent of a patient to any treatment has been given for the purposes of section 57, 58 or 58A above; but
(b) before the completion of the treatment, the patient ceases to be capable of understanding its nature, purpose and likely effects.
(1B) The patient shall, subject to section 62 below, be treated as having withdrawn his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
(1C) Subsection (1D) below applies where—
(a) a certificate has been given under section 58 or 58A above that a patient is not capable of understanding the nature, purpose and likely effects of the treatment to which the certificate applies; but
(b) before the completion of the treatment, the patient becomes capable of understanding its nature, purpose and likely effects.
(1D) The certificate shall, subject to section 62 below, cease to apply to the treatment and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
(2) Without prejudice to the application of subsections (1) to (1D) above to any treatment given under the plan of treatment to which a patient has consented, a patient who has consented to such a plan may, subject to section 62 below, at any time withdraw his consent to further treatment, or to further treatment of any description, under the plan.
(1) Where a patient is given treatment in accordance with section 57(2) , 58(3)(b) or 58A(4) or (5) above , or by virtue of section 62A below in accordance with a Part 4A certificate (within the meaning of that section) that falls within section 64C(4) below, a report on the treatment and the patient’s condition shall be given by the approved clinician in charge of the treatment to the regulatory authority—
(a) on the next occasion on which the responsible clinician furnishes a report under section 20(3) , 20A(4) or 21B(2) above in respect of the patient; and
(b) at any other time if so required by the regulatory authority.
(2) In relation to a patient who is subject to a restriction order , limitation directionor restriction direction subsection (1) above shall have effect as if paragraph (a) required the report to be made—
(a) in the case of treatment in the period of six months beginning with the date of the order or direction, at the end of that period;
(b) in the case of treatment at any subsequent time, on the next occasion on which the responsible clinician makes a report in respect of the patient under section 41(6) , 45B(3) or 49(3) above.
(3) The regulatory authority may at any time give notice . . . directing that, subject to section 62 below, a certificate given in respect of a patient under subsection 57(2) , 58(3)(b) or 58A(4) or (5) above shall not apply to treatment given to him (whether in England or Wales) after a date specified in the notice and sections 57 , 58 and 58A above shall then apply to any such treatment as if that certificate has not been given.
(3A) The notice under subsection (3) above shall be given to the approved clinician in charge of the treatment.
(1) Sections 57 and 58 above shall not apply to any treatment—
(a) which is immediately necessary to save the patient’s life;
(b) which (not being irreversible) is immediately necessary to prevent a serious deterioration of his condition; or
(c) which (not being irreversible or hazardous) is immediately necessary to alleviate serious suffering by the patient; or
(d) which (not being irreversible or hazardous) is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or to others.
(1A) Section 58A above, in so far as it relates to electro-convulsive therapy by virtue of subsection (1)(a) of that section, shall not apply to any treatment which falls within paragraph (a) or (b) of subsection (1) above.
(1B) Section 58A above, in so far as it relates to a form of treatment specified by virtue of subsection (1)(b) of that section, shall not apply to any treatment which falls within such of paragraphs (a) to (d) of subsection (1) above as may be specified in regulations under that section.
(1C) For the purposes of subsection (1B) above, the regulations—
(a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);
(b) may make provision which applies subject to specified exceptions; and
(c) may include transitional, consequential, incidental or supplemental provision.
(2) Sections 60 and 61(3) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with section 57 , 58 or 58A above if the approved clinician in charge of the treatment considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.
(3) For the purposes of this section treatment is irreversible if it has unfavourable irreversible physical or psychological consequences and hazardous if it entails significant physical hazard.
62A Treatment on recall of community patient or revocation of order
(1) This section applies where—
(a) a community patient is recalled to hospital under section 17E above; or
(b) a patient is liable to be detained under this Act following the revocation of a community treatment order under section 17F above in respect of him.
(2) For the purposes of section 58(1)(b) above, the patient is to be treated as if he had remained liable to be detained since the making of the community treatment order.
(3) But section 58 above does not apply to treatment given to the patient if—
(a) the certificate requirement is met for the purposes of section 64C or 64E below; or
(b) as a result of section 64B(4) or 64E(4) below, the certificate requirement would not apply (were the patient a community patient not recalled to hospital under section 17E above).
(4) Section 58A above does not apply to treatment given to the patient if there is authority to give the treatment, and the certificate requirement is met, for the purposes of section 64C or 64E below.
(5) In a case where this section applies and the Part 4A certificate falls within section 64C(4) below, the certificate requirement is met only in so far as—
(a) the Part 4A certificate expressly provides that it is appropriate for one or more specified forms of treatment to be given to the patient in that case (subject to such conditions as may be specified); or
(b) a notice having been given under subsection (5) of section 64H below, treatment is authorised by virtue of subsection (8) of that section.
(6) Subsection (5)(a) above shall not preclude the continuation of any treatment, or of treatment under any plan, pending compliance with section 58 or 58A above or 64B or 64E below if the approved clinician in charge of the treatment considers that the discontinuance of the treatment, or of the treatment under the plan, would cause serious suffering to the patient.
(6A) In a case where this section applies and the certificate requirement is no longer met for the purposes of section 64C(4A) below, the continuation of any treatment, or of treatment under any plan, pending compliance with section 58 or 58A above or 64B or 64E below shall not be precluded if the approved clinician in charge of the treatment considers that the discontinuance of the treatment, or of treatment under the plan, would cause serious suffering to the patient.
(7) In a case where subsection (1)(b) above applies, subsection (3) above only applies pending compliance with section 58 above.
(8) In subsection (5) above—
“ Part 4A certificate ” has the meaning given in section 64H below; and
“ specified ”, in relation to a Part 4A certificate, means specified in the certificate.
The consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering , not being a form of treatment to which section 57, 58 or 58A above applies, if the treatment is given by or under the direction of the approved clinician in charge of the treatment .
(1) In this Part of this Act “the responsible clinician” means the approved clinician with overall responsibility for the case of the patient in question and “hospital” includes a registered establishment.
(1A) References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 57 above applies, be construed as references to the person in charge of the treatment.
(1B) References in this Part of this Act to the approved clinician in charge of a patient's treatment shall, where the treatment in question is a form of treatment to which section 58A above applies and the patient falls within section 56(5) above, be construed as references to the person in charge of the treatment.
(1C) Regulations made by virtue of section 32(2)(d) above apply for the purposes of this Part as they apply for the purposes of Part 2 of this Act.
(2) Any certificate for the purposes of this Part of this Act shall be in such form as may be prescribed by regulations made by the Secretary of State.
(3) For the purposes of this Part of this Act, it is appropriate for treatment to be given to a patient if the treatment is appropriate in his case, taking into account the nature and degree of the mental disorder from which he is suffering and all other circumstances of his case.
In this Part of this Act “ relevant treatment ”, in relation to a patient, means medical treatment which—
(a) is for the mental disorder from which the patient is suffering; and
(b) is not a form of treatment to which section 57 above applies.
(1) This section applies to the giving of relevant treatment to a community patient who—
(a) is not recalled to hospital under section 17E above; and
(b) has attained the age of 16 years.
(2) The treatment may not be given to the patient unless—
(a) there is authority to give it to him; and
(b) if it is section 58 type treatment or section 58A type treatment, the certificate requirement is met.
(3) But the certificate requirement does not apply if—
(a) giving the treatment to the patient is authorised in accordance with section 64G below; or
(b) the treatment is immediately necessary and—
(i) the patient has capacity to consent to it and does consent to it; or
(ii) a donee or deputy or the Court of Protection consents to the treatment on the patient's behalf.
(4) Nor does the certificate requirement apply in so far as the administration of medicine to the patient at any time during the period of one month beginning with the day on which the community treatment order is made is section 58 type treatment.
(5) The reference in subsection (4) above to the administration of medicine does not include any form of treatment specified under section 58(1)(a) above.
(1) This section has effect for the purposes of section 64B above.
(2) There is authority to give treatment to a patient if—
(a) he has capacity to consent to it and does consent to it;
(b) a donee or deputy or the Court of Protection consents to it on his behalf; or
(c) giving it to him is authorised in accordance with section 64D or 64G below.
(3) Relevant treatment is section 58 type treatment or section 58A type treatment if, at the time when it is given to the patient, section 58 or 58A above (respectively) would have applied to it, had the patient remained liable to be detained at that time (rather than being a community patient).
(4) The certificate requirement is met in respect of treatment to be given to a patient if—
(a) a registered medical practitioner appointed for the purposes of Part 4 of this Act (not being the responsible clinician or the person in charge of the treatment) has certified in writing that it is appropriate for the treatment to be given or for the treatment to be given subject to such conditions as may be specified in the certificate; and
(b) if conditions are so specified, the conditions are satisfied.
(4A) Where there is authority to give treatment by virtue of subsection (2)(a), the certificate requirement is also met in respect of the treatment if the approved clinician in charge of the treatment has certified in writing that the patient has capacity to consent to the treatment and has consented to it.
(4B) But, if the patient has not attained the age of 18, subsection (4A) does not apply to section 58A type treatment.
(5) In a case where the treatment is section 58 type treatment, treatment is immediately necessary if—
(a) it is immediately necessary to save the patient's life; or
(b) it is immediately necessary to prevent a serious deterioration of the patient's condition and is not irreversible; or
(c) it is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or
(d) it is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others and is not irreversible or hazardous.
(6) In a case where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (5) above.
(7) In a case where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (5) above as may be specified in regulations under that section.
(8) For the purposes of subsection (7) above, the regulations—
(a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);
(b) may make provision which applies subject to specified exceptions; and
(c) may include transitional, consequential, incidental or supplemental provision.
(9) Subsection (3) of section 62 above applies for the purposes of this section as it applies for the purposes of that section.
(1) A person is authorised to give relevant treatment to a patient as mentioned in section 64C(2)(c) above if the conditions in subsections (2) to (6) below are met.
(2) The first condition is that, before giving the treatment, the person takes reasonable steps to establish whether the patient lacks capacity to consent to the treatment.
(3) The second condition is that, when giving the treatment, he reasonably believes that the patient lacks capacity to consent to it.
(4) The third condition is that—
(a) he has no reason to believe that the patient objects to being given the treatment; or
(b) he does have reason to believe that the patient so objects, but it is not necessary to use force against the patient in order to give the treatment.
(5) The fourth condition is that—
(a) he is the person in charge of the treatment and an approved clinician; or
(b) the treatment is given under the direction of that clinician.
(6) The fifth condition is that giving the treatment does not conflict with—
(a) an advance decision which he is satisfied is valid and applicable; or
(b) a decision made by a donee or deputy or the Court of Protection.
(7) In this section—
(a) reference to an advance decision is to an advance decision (within the meaning of the Mental Capacity Act 2005) made by the patient; and
(b) “ valid and applicable ”, in relation to such a decision, means valid and applicable to the treatment in question in accordance with section 25 of that Act.
(1) This section applies to the giving of relevant treatment to a community patient who—
(a) is not recalled to hospital under section 17E above; and
(b) has not attained the age of 16 years.
(2) The treatment may not be given to the patient unless—
(a) there is authority to give it to him; and
(b) if it is section 58 type treatment or section 58A type treatment, the certificate requirement is met.
(3) But the certificate requirement does not apply if—
(a) giving the treatment to the patient is authorised in accordance with section 64G below; or
(b) in a case where the patient is competent to consent to the treatment and does consent to it, the treatment is immediately necessary.
(4) Nor does the certificate requirement apply in so far as the administration of medicine to the patient at any time during the period of one month beginning with the day on which the community treatment order is made is section 58 type treatment.
(5) The reference in subsection (4) above to the administration of medicine does not include any form of treatment specified under section 58(1)(a) above.
(6) For the purposes of subsection (2)(a) above, there is authority to give treatment to a patient if—
(a) he is competent to consent to it and he does consent to it; or
(b) giving it to him is authorised in accordance with section 64F or 64G below.
(7) Subsections (3) to (4A) and (5) to (9) of section 64C above have effect for the purposes of this section as they have effect for the purposes of section 64B above ; and for the purpose of this subsection, subsection (4A) of section 64C above has effect as if—
(a) the references to treatment were references only to section 58 type treatment,
(b) the reference to subsection (2)(a) of section 64C were a reference to subsection (6)(a) of this section, and
(c) the reference to capacity to consent were a reference to competence to consent.
(8) Regulations made by virtue of section 32(2)(d) above apply for the purposes of this section as they apply for the purposes of Part 2 of this Act.
(1) A person is authorised to give relevant treatment to a patient as mentioned in section 64E(6)(b) above if the conditions in subsections (2) to (5) below are met.
(2) The first condition is that, before giving the treatment, the person takes reasonable steps to establish whether the patient is competent to consent to the treatment.
(3) The second condition is that, when giving the treatment, he reasonably believes that the patient is not competent to consent to it.
(4) The third condition is that—
(a) he has no reason to believe that the patient objects to being given the treatment; or
(b) he does have reason to believe that the patient so objects, but it is not necessary to use force against the patient in order to give the treatment.
(5) The fourth condition is that—
(a) he is the person in charge of the treatment and an approved clinician; or
(b) the treatment is given under the direction of that clinician.
(1) Where the consent of a patient to any treatment has been given as mentioned in section 64C(2)(a) above for the purposes of section 64B or 64E above, the patient may at any time before the completion of the treatment withdraw his consent, and those sections shall then apply as if the remainder of the treatment were a separate form of treatment.
(2) Subsection (3) below applies where—
(a) the consent of a patient to any treatment has been given as mentioned in section 64C(2)(a) above for the purposes of section 64B or 64E above; but
(b) before the completion of the treatment, the patient loses capacity or (as the case may be) competence to consent to the treatment.
(3) The patient shall be treated as having withdrawn his consent and section 64B or (as the case may be) section 64E above shall then apply as if the remainder of the treatment were a separate form of treatment.
(4) Without prejudice to the application of subsections (1) to (3) above to any treatment given under the plan of treatment to which a patient has consented, a patient who has consented to such a plan may at any time withdraw his consent to further treatment, or to further treatment of any description, under the plan.
(5) This section shall not preclude the continuation of any treatment, or of treatment under any plan, pending compliance with section 58, 58A, 64B or 64E above if the approved clinician in charge of the treatment considers that the discontinuance of the treatment, or of treatment under the plan, would cause serious suffering to the patient.
64G Emergency treatment for patients lacking capacity or competence
(1) A person is also authorised to give relevant treatment to a patient as mentioned in section 64C(2)(c) or 64E(6)(b) above if the conditions in subsections (2) to (4) below are met.
(2) The first condition is that, when giving the treatment, the person reasonably believes that the patient lacks capacity to consent to it or, as the case may be, is not competent to consent to it.
(3) The second condition is that the treatment is immediately necessary.
(4) The third condition is that if it is necessary to use force against the patient in order to give the treatment—
(a) the treatment needs to be given in order to prevent harm to the patient; and
(b) the use of such force is a proportionate response to the likelihood of the patient's suffering harm, and to the seriousness of that harm.
(5) Subject to subsections (6) to (8) below, treatment is immediately necessary if—
(a) it is immediately necessary to save the patient's life; or
(b) it is immediately necessary to prevent a serious deterioration of the patient's condition and is not irreversible; or
(c) it is immediately necessary to alleviate serious suffering by the patient and is not irreversible or hazardous; or
(d) it is immediately necessary, represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others and is not irreversible or hazardous.
(6) Where the treatment is section 58A type treatment by virtue of subsection (1)(a) of that section, treatment is immediately necessary if it falls within paragraph (a) or (b) of subsection (5) above.
(7) Where the treatment is section 58A type treatment by virtue of subsection (1)(b) of that section, treatment is immediately necessary if it falls within such of paragraphs (a) to (d) of subsection (5) above as may be specified in regulations under section 58A above.
(8) For the purposes of subsection (7) above, the regulations—
(a) may make different provision for different cases (and may, in particular, make different provision for different forms of treatment);
(b) may make provision which applies subject to specified exceptions; and
(c) may include transitional, consequential, incidental or supplemental provision.
(9) Subsection (3) of section 62 above applies for the purposes of this section as it applies for the purposes of that section.
(1) A certificate under section 64B(2)(b) or 64E(2)(b) above (a “Part 4A certificate”) may relate to a plan of treatment under which the patient is to be given (whether within a specified period or otherwise) one or more forms of section 58 type treatment or section 58A type treatment.
(2) A Part 4A certificate shall be in such form as may be prescribed by regulations made by the appropriate national authority ; and the regulations may make different provision for the different descriptions of Part 4A certificate.
(3) Before giving a Part 4A certificate that falls within section 64C(4) above, the registered medical practitioner concerned shall consult two other persons who have been professionally concerned with the patient's medical treatment but, of those persons—
(a) at least one shall be a person who is not a registered medical practitioner; and
(b) neither shall be the patient's responsible clinician or the person in charge of the treatment in question.
(4) Where a patient is given treatment in accordance with a Part 4A certificate that falls within section 64C(4) above, a report on the treatment and the patient's condition shall be given by the person in charge of the treatment to the appropriate national authority if required by that authority.
(5) The appropriate national authority may at any time give notice directing that a Part 4A certificate that falls within section 64C(4) above shall not apply to treatment given to a patient after a date specified in the notice, and the relevant section shall then apply to any such treatment as if that certificate had not been given.
(6) The relevant section is—
(a) if the patient is not recalled to hospital in accordance with section 17E above, section 64B or 64E above;
(b) if the patient is so recalled or is liable to be detained under this Act following revocation of the community treatment order under section 17F above—
(i) section 58 above, in the case of section 58 type treatment;
(ii) section 58A above, in the case of section 58A type treatment;
(subject to section 62A(2) above).
(7) The notice under subsection (5) above shall be given to the person in charge of the treatment in question.
(8) Subsection (5) above shall not preclude the continuation of any treatment or of treatment under any plan pending compliance with the relevant section if the person in charge of the treatment considers that the discontinuance of the treatment or of treatment under the plan would cause serious suffering to the patient.
(9) In this section, “ the appropriate national authority ” means—
(a) in relation to community patients in respect of whom the responsible hospital is in England, the Secretary of State;
(b) in relation to community patients in respect of whom the responsible hospital is in Wales, the Welsh Ministers.
Nothing in section 64D, 64F or 64G above excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing anything authorised to be done by that section.
64J Factors to be considered in determining whether patient objects to treatment
(1) In assessing for the purposes of this Part whether he has reason to believe that a patient objects to treatment, a person shall consider all the circumstances so far as they are reasonably ascertainable, including the patient's behaviour, wishes, feelings, views, beliefs and values.
(2) But circumstances from the past shall be considered only so far as it is still appropriate to consider them.
(1) This Part of this Act is to be construed as follows.
(2) References to a patient who lacks capacity are to a patient who lacks capacity within the meaning of the Mental Capacity Act 2005.
(3) References to a patient who has capacity are to be read accordingly.
(4) References to a donee are to a donee of a lasting power of attorney (within the meaning of section 9 of the Mental Capacity Act 2005) created by the patient, where the donee is acting within the scope of his authority and in accordance with that Act.
(5) References to a deputy are to a deputy appointed for the patient by the Court of Protection under section 16 of the Mental Capacity Act 2005, where the deputy is acting within the scope of his authority and in accordance with that Act.
(6) Reference to the responsible clinician shall be construed as a reference to the responsible clinician within the meaning of Part 2 of this Act.
(7) References to a hospital include a registered establishment.
(8) Section 64(3) above applies for the purposes of this Part of this Act as it applies for the purposes of Part 4 of this Act.
(1) There shall be a Mental Health Review Tribunal for Wales.
(1A) The purpose of that tribunal is to deal with applications and references by and in respect of patients under the provisions of this Act.
(2) The provisions of Schedule 2 to this Act shall have effect with respect to the constitution of the Mental Health Review Tribunal for Wales.
(3) Subject to the provisions of Schedule 2 to this Act, and to rules made by the Lord Chancellor under this Act, the jurisdiction of the Mental Health Review Tribunal for Wales may be exercised by any three or more of its members, and references in this Act to the Mental Health Review Tribunal for Wales shall be construed accordingly.
(4) The Welsh Ministers may pay to the members of the Mental Health Review Tribunal for Wales such remuneration and allowances as they may determine, and defray the expenses of that tribunal to such amount as they may determine, and may provide for that tribunal such officers and servants, and such accommodation, as that tribunal may require.
(1) Where—
(a) a patient is admitted to a hospital in pursuance of an application for admission for assessment; or
(b) a patient is admitted to a hospital in pursuance of an application for admission for treatment; or
(c) a patient is received into guardianship in pursuance of a guardianship application; or
(ca) a community treatment order is made in respect of a patient; or
(cb) a community treatment order is revoked under section 17F above in respect of a patient; or
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(e) a patient is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above; or
(f) a report is furnished under section 20 above in respect of a patient and the patient is not discharged under section 23 above ; or
(fza) a report is furnished under section 20A above in respect of a patient and the patient is not discharged under section 23 above; or
(fa) a report is furnished under subsection (2) of section 21B above in respect of a patient and subsection (5) of that section applies (or subsections (5) and (6)(b) of that section apply) in the case of the report; or
(faa) a report is furnished under subsection (2) of section 21B above in respect of a community patient and subsection (6A) of that section applies (or subsections (6A) and (6B)(b) of that section apply) in the case of the report; or
(fb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) a report is furnished under section 25 above in respect of a patient who is detained in pursuance of an application for admission for treatment or a community patient ; or
(ga) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(gb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(gc) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(h) an order is made under section 29 above on the ground specified in paragraph (c) or (d) of subsection (3) of that section in respect of a patient who is or subsequently becomes liable to be detained or subject to guardianship under Part II of this Act or who is a community patient ,
an application may be made to the appropriate tribunal within the relevant period—
(i) by the patient (except in the cases mentioned in paragraphs (g) and (h) above . . .
(ii) in the cases mentioned in paragraphs (g) and (h) above, by his nearest relative.
(2) In subsection (1) above “the relevant period” means—
(a) in the case mentioned in paragraph (a) of that subsection, 14 days beginning with the day on which the patient is admitted as so mentioned;
(b) in the case mentioned in paragraph (b) of that subsection, six months beginning with the day on which the patient is admitted as so mentioned;
(c) in the case mentioned in paragraph (c) of that subsection, six months beginning with the day on which the application is accepted;
(ca) in the case mentioned in paragraph (ca) of that subsection, six months beginning with the day on which the community treatment order is made;
(cb) in the case mentioned in paragraph (cb) of that subsection, six months beginning with the day on which the community treatment order is revoked;
(d) in the case mentioned in paragraph (g). . . of that subsection, 28 days beginning with the day on which the applicant is informed that the report has been furnished;
(e) in the case mentioned in paragraph (e) of that subsection, six months beginning with the day on which the patient is transferred;
(f) in the case mentioned in paragraph (f) or (fa) of that subsection, the period or periods for which authority for the patient’s detention or guardianship is renewed by virtue of the report;
(fza) in the cases mentioned in paragraphs (fza) and (faa) of that subsection, the period or periods for which the community treatment period is extended by virtue of the report;
(fa) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(g) in the case mentioned in paragraph (h) of that subsection, 12 months beginning with the date of the order, and in any subsequent period of 12 months during which the order continues in force.
(2A) Nothing in subsection (1)(b) above entitles a community patient to make an application by virtue of that provision even if he is admitted to a hospital on being recalled there under section 17E above.
(3) Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.
(4) In this Act “the appropriate tribunal” means the First-tier Tribunal or the Mental Health Review Tribunal for Wales.
(5) For provision determining to which of those tribunals applications by or in respect of a patient under this Act shall be made, see section 77(3) and (4) below.
67 References to tribunals by Secretary of State concerning Part II patients.
(1) The Secretary of State may, if he thinks fit, at any time refer to the appropriate tribunal the case of any patient who is liable to be detained or subject to guardianship . . . under Part II of this Act or of any community patient .
(2) For the purpose of furnishing information for the purposes of a reference under subsection (1) above any registered medical practitioner or approved clinician authorised by or on behalf of the patient may, at any reasonable time, visit the patient and examine him in private and require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or to any after-care services provided for the patient under section 117 below.
(3) Section 32 above shall apply for the purposes of this section as it applies for the purposes of Part II of this Act.
68 Duty of managers of hospitals to refer cases to tribunal.
(1) This section applies in respect of the following patients—
(a) a patient who is admitted to a hospital in pursuance of an application for admission for assessment;
(b) a patient who is admitted to a hospital in pursuance of an application for admission for treatment;
(c) a community patient;
(d) a patient whose community treatment order is revoked under section 17F above;
(e) a patient who is transferred from guardianship to a hospital in pursuance of regulations made under section 19 above.
(2) On expiry of the period of six months beginning with the applicable day, the managers of the hospital shall refer the patient's case to the appropriate tribunal.
(3) But they shall not do so if during that period—
(a) any right has been exercised by or in respect of the patient by virtue of any of paragraphs (b), (ca), (cb), (e), (g) and (h) of section 66(1) above;
(b) a reference has been made in respect of the patient under section 67(1) above, not being a reference made while the patient is or was liable to be detained in pursuance of an application for admission for assessment; or
(c) a reference has been made in respect of the patient under subsection (7) below.
(4) A person who applies to a tribunal but subsequently withdraws his application shall be treated for these purposes as not having exercised his right to apply, and if he withdraws his application on a date after expiry of the period mentioned in subsection (2) above, the managers shall refer the patient's case as soon as possible after that date.
(5) In subsection (2) above, “the applicable day” means—
(a) in the case of a patient who is admitted to a hospital in pursuance of an application for admission for assessment, the day on which the patient was so admitted;
(b) in the case of a patient who is admitted to a hospital in pursuance of an application for admission for treatment—
(i) the day on which the patient was so admitted; or
(ii) if, when he was so admitted, he was already liable to be detained in pursuance of an application for admission for assessment, the day on which he was originally admitted in pursuance of the application for admission for assessment;
(c) in the case of a community patient or a patient whose community treatment order is revoked under section 17F above, the day mentioned in sub-paragraph (i) or (ii), as the case may be, of paragraph (b) above;
(d) in the case of a patient who is transferred from guardianship to a hospital, the day on which he was so transferred.
(6) The managers of the hospital shall also refer the patient's case to the appropriate tribunal if a period of more than three years (or, if the patient has not attained the age of 18 years, one year) has elapsed since his case was last considered by such a tribunal, whether on his own application or otherwise.
(7) If, in the case of a community patient, the community treatment order is revoked under section 17F above, the managers of the hospital shall also refer the patient's case to the appropriate tribunal as soon as possible after the order is revoked.
(8) For the purposes of furnishing information for the purposes of a reference under this section, a registered medical practitioner or approved clinician authorised by or on behalf of the patient may at any reasonable time—
(a) visit and examine the patient in private; and
(b) require the production of and inspect any records relating to the detention or treatment of the patient in any hospital or any after-care services provided for him under section 117 below.
(9) Reference in this section to the managers of the hospital—
(a) in relation to a community patient, is to the managers of the responsible hospital;
(b) in relation to any other patient, is to the managers of the hospital in which he is liable to be detained.
(1) The appropriate national authority may from time to time by order amend subsection (2) or (6) of section 68 above so as to substitute for a period mentioned there such shorter period as is specified in the order.
(2) The order may include such transitional, consequential, incidental or supplemental provision as the appropriate national authority thinks fit.
(3) The order may, in particular, make provision for a case where—
(a) a patient in respect of whom subsection (1) of section 68 above applies is, or is about to be, transferred from England to Wales or from Wales to England; and
(b) the period by reference to which subsection (2) or (6) of that section operates for the purposes of the patient's case is not the same in one territory as it is in the other.
(4) A patient is transferred from one territory to the other if—
(a) he is transferred from a hospital, or from guardianship, in one territory to a hospital in the other in pursuance of regulations made under section 19 above;
(b) he is removed under subsection (3) of that section from a hospital or accommodation in one territory to a hospital or accommodation in the other;
(c) he is a community patient responsibility for whom is assigned from a hospital in one territory to a hospital in the other in pursuance of regulations made under section 19A above; or
(d) on the revocation of a community treatment order in respect of him under section 17F above he is detained in a hospital in the territory other than the one in which the responsible hospital was situated; ...
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) Provision made by virtue of subsection (3) above may require or authorise the managers of a hospital determined in accordance with the order to refer the patient's case to the appropriate tribunal.
(6) In so far as making provision by virtue of subsection (3) above, the order—
(a) may make different provision for different cases;
(b) may make provision which applies subject to specified exceptions.
(7) Where the appropriate national authority for one territory makes an order under subsection (1) above, the appropriate national authority for the other territory may by order make such provision in consequence of the order as it thinks fit.
(8) An order made under subsection (7) above may, in particular, make provision for a case within subsection (3) above (and subsections (4) to (6) above shall apply accordingly).
(9) In this section, “ the appropriate national authority ” means—
(a) in relation to a hospital in England, the Secretary of State;
(b) in relation to a hospital in Wales, the Welsh Ministers.
69 Applications to tribunals concerning patients subject to hospital and guardianship orders.
(1) Without prejudice to any provision of section 66(1) above as applied by section 40(4) above, an application to the appropriate tribunal may also be made—
(a) in respect of a patient liable to be detained in pursuance of a hospital order or a community patient who was so liable immediately before he became a community patient, by the nearest relative of the patient in any period in which an application may be made by the patient under any such provision as so applied;
(b) in respect of a patient placed under guardianship by a guardianship order—
(i) by the patient, within the period of six months beginning with the date of the order;
(ii) by the nearest relative of the patient, within the period of 12 months beginning with the date of the order and in any subsequent period of 12 months.
(2) Where a person detained in a hospital—
(a) is treated as subject to a hospital order , hospital direction or transfer direction by virtue of section 41(5) above or section 80B(2), 82(2) or 85(2) below. ; or
(b) is subject to a direction having the same effect as a hospital order by virtue of section. . . 47(3) or 48(3) above,
then, without prejudice to any provision of Part II of this Act as applied by section 40 above, that person may make an application to the appropriate tribunal in the period of six months beginning with the date of the order or direction mentioned in paragraph (a) above or, as the case may be, the date of the direction mentioned in paragraph (b) above.
(3) The provisions of section 66 above as applied by section 40(4) above are subject to subsection (4) below.
(4) If the initial detention period has not elapsed when the relevant application period begins, the right of a hospital order patient to make an application by virtue of paragraph (ca) or (cb) of section 66(1) above shall be exercisable only during whatever remains of the relevant application period after the initial detention period has elapsed.
(5) In subsection (4) above—
(a) “hospital order patient” means a patient who is subject to a hospital order, excluding a patient of a kind mentioned in paragraph (a) or (b) of subsection (2) above;
(b) “the initial detention period”, in relation to a hospital order patient, means the period of six months beginning with the date of the hospital order; and
(c) “the relevant application period” means the relevant period mentioned in paragraph (ca) or (cb), as the case may be, of section 66(2) above.
70 Applications to tribunals concerning restricted patients.
A patient who is a restricted patient within the meaning of section 79 below and is detained in a hospital may apply to the appropriate tribunal—
(a) in the period between the expiration of six months and the expiration of 12 months beginning with the date of the relevant hospital order , hospital direction or transfer direction; and
(b) in any subsequent period of 12 months.
71 References by Secretary of State concerning restricted patients.
(1) The Secretary of State may at any time refer the case of a restricted patient to the appropriate tribunal.
(2) The Secretary of State shall refer to the appropriate tribunal the case of any restricted patient detained in a hospital whose case has not been considered by such a tribunal, whether on his own application or otherwise, within the last three years.
(3) The Secretary of State may by order vary the length of the period mentioned in subsection (2) above.
(3A) An order under subsection (3) above may make—
(a) provision subject to specified exceptions,
(b) different provision for different cases or areas, and
(c) transitional, consequential, incidental or supplemental provision.
(4) Any reference under subsection (1) above in respect of a patient who has been conditionally discharged and not recalled to hospital shall be made to the tribunal for the area in which the patient resides.
(4A) Sections 73 and 74 do not apply to a reference under subsection (1) in respect of a patient who has been conditionally discharged and not recalled to hospital but on any such reference the tribunal may—
(a) vary any condition to which the patient is subject in connection with the patient’s discharge or impose any condition which might have been imposed in connection with their discharge, or
(b) direct that the restriction order, limitation direction or restriction direction to which the patient is subject ceases to have effect,
and if the tribunal gives a direction under paragraph (b) the patient ceases to be liable to be detained by virtue of the relevant hospital order, hospital direction or transfer direction.
(4B) Conditions amounting to a deprivation of liberty may be imposed under subsection (4A)(a) only if the tribunal is satisfied—
(a) that conditions amounting to a deprivation of the patient’s liberty are necessary for the protection of another person from serious harm while the patient remains discharged from hospital, and
(b) that for the patient to remain discharged subject to those conditions would be no less beneficial to their mental health than for them to be recalled to hospital.
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) Where application is made to the appropriate tribunal by or in respect of a patient who is liable to be detained under this Act or is a community patient , the tribunal may in any case direct that the patient be discharged, and—
(a) the tribunal shall direct the discharge of a patient liable to be detained under section 2 above if it is not satisfied—
(i) that he is then suffering from mental disorder or from mental disorder of a nature or degree which warrants his detention in a hospital for assessment (or for assessment followed by medical treatment) for at least a limited period; or
(ii) that his detention as aforesaid is justified in the interests of his own health or safety or with a view to the protection of other persons;
(b) the tribunal shall direct the discharge of a patient liable to be detained otherwise than under section 2 above if it is not satisfied—
(i) that he is then suffering from mental disorder or from mental disorderof a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment; or
(ii) that it is necessary for the health of safety of the patient or for the protection of other persons that he should receive such treatment; or
(iia) that appropriate medical treatment is available for him; or
(iii) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if released, would be likely to act in a manner dangerous to other persons or to himself.
(c) the tribunal shall direct the discharge of a community patient if it is not satisfied—
(i) that he is then suffering from mental disorder or mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment; or
(ii) that it is necessary for his health or safety or for the protection of other persons that he should receive such treatment; or
(iii) that it is necessary that the responsible clinician should be able to exercise the power under section 17E(1) above to recall the patient to hospital; or
(iv) that appropriate medical treatment is available for him; or
(v) in the case of an application by virtue of paragraph (g) of section 66(1) above, that the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself.
(1A) In determining whether the criterion in subsection (1)(c)(iii) above is met, the tribunal shall, in particular, consider, having regard to the patient's history of mental disorder and any other relevant factors, what risk there would be of a deterioration of the patient's condition if he were to continue not to be detained in a hospital (as a result, for example, of his refusing or neglecting to receive the medical treatment he requires for his mental disorder).
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) A tribunal may under subsection (1) above direct the discharge of a patient on a future date specified in the direction; and where a tribunal does not direct the discharge of a patient under that subsection the tribunal may—
(a) with a view to facilitating his discharge on a future date, recommend that he be granted leave of absence or transferred to another hospital or into guardianship; and
(b) further consider his case in the event of any such recommendation not being complied with.
(3A) Subsection (1) above does not require a tribunal to direct the discharge of a patient just because it thinks it might be appropriate for the patient to be discharged (subject to the possibility of recall) under a community treatment order; and a tribunal—
(a) may recommend that the responsible clinician consider whether to make a community treatment order; and
(b) may (but need not) further consider the patient's case if the responsible clinician does not make an order.
(4) Where application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if it is satisfied—
(a) that he is not then suffering from mental disorder ; or
(b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship.
(4A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) Subsections (1) to (4) above apply in relation to references to the appropriate tribunal as they apply in relation to applications made to the appropriate tribunal by or in respect of a patient.
(7) Subsection (1) above shall not apply in the case of a restricted patient except as provided in sections 73 and 74 below.
(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a restriction order, or where the case of such a patient is referred to the appropriate tribunal, the tribunal shall direct the absolute discharge of the patient if—
(a) the tribunal is not satisfied as to the matters mentioned in paragraph (b)(i) , (ii) or (iia) of section 72(1) above; and
(b) the tribunal is satisfied that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment.
(2) Where in the case of any such patient as is mentioned in subsection (1) above—
(a) paragraph (a) of that subsection applies; ...
(b) paragraph (b) of that subsection does not apply ; and
(c) the tribunal—
(i) is not satisfied that conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm, if the patient were discharged from hospital; or
(ii) is satisfied that conditions amounting to a deprivation of the patient’s liberty would be necessary for the protection of another person from serious harm if the patient were discharged from hospital, and is also satisfied that for the patient to be discharged subject to those conditions would be no less beneficial to their mental health than for them to remain in hospital;
the tribunal shall direct the conditional discharge of the patient.
(3) Where a patient is absolutely discharged under this section he shall thereupon cease to be liable to be detained by virtue of the relevant hospital order, and the restriction order shall cease to have effect accordingly.
(4) Where a patient is conditionally discharged under this section—
(a) he may be recalled by the Secretary of State under subsection (3) of section 42 above as if he had been conditionally discharged under subsection (2) of that section; and
(b) the patient shall comply with such conditions (if any) as may be imposed at the time of discharge by the tribunal or at any subsequent time by the Secretary of State.
(5) The Secretary of State may from time to time vary any condition imposed (whether by the tribunal or by him) under subsection (4) above.
(5A) Conditions amounting to a deprivation of a patient’s liberty may be imposed by the tribunal under subsection (4)(b) only where the tribunal is satisfied as to the matters mentioned in subsection (2)(c)(ii).
(5B) Conditions amounting to a deprivation of a patient’s liberty may be imposed by the Secretary of State under subsection (4)(b) or (5) only where the Secretary of State is satisfied that those conditions are necessary for the protection of the public from serious harm.
(6) Where a restriction order in respect of a patient ceases to have effect after he has been conditionally discharged under this section the patient shall, unless previously recalled, be deemed to be absolutely discharged on the date when the order ceases to have effect and shall cease to be liable to be detained by virtue of the relevant hospital order.
(7) A tribunal may defer a direction for the conditional discharge of a patient until such arrangements as appear to the tribunal to be necessary for that purpose have been made to its satisfaction; and where by virtue of any such deferment no direction has been given on an application or reference before the time when the patient’s case comes before the tribunal on a subsequent application or reference, the previous application or reference shall be treated as one on which no direction under this section can be given.
(8) This section is without prejudice to section 42 above.
74 Restricted patients subject to restriction directions.
(1) Where an application to the appropriate tribunal is made by a restricted patient who is subject to a limitation direction or a restriction direction, or where the case of such a patient is referred to the appropriate tribunal, the tribunal—
(a) shall notify the Secretary of State whether, in its opinion, the patient would, if subject to a restriction order, be entitled to be absolutely or conditionally discharged under section 73 above; and
(b) if the tribunal notifies him that the patient would be entitled to be conditionally discharged, may recommend that in the event of his not being discharged under this section he should continue to be detained in hospital.
(2) If in the case of a patient not falling within subsection (4) below—
(a) the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged; and
(b) within the period of 90 days beginning with the date of that notification the Secretary of State gives notice to the tribunal that the patient may be so discharged,
the tribunal shall direct the absolute or, as the case may be, the conditional discharge of the patient.
(3) Where a patient continues to be liable to be detained in a hospital at the end of the period referred to in subsection (2)(b) above because the Secretary of State has not given the notice there mentioned, the managers of the hospital shall, unless the tribunal has made a recommendation under subsection (1)(b) above, transfer the patient to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.
(4) If, in the case of a patient who is subject to a transfer direction under section 48 above, the tribunal notifies the Secretary of State that the patient would be entitled to be absolutely or conditionally discharged, the Secretary of State shall, unless the tribunal has made a recommendation under subsection (1)(b) above, by warrant direct that the patient be remitted to a prison or other institution in which he might have been detained if he had not been removed to hospital, there to be dealt with as if he had not been so removed.
(5) Where a patient is transferred or remitted under subsection (3) or (4) above the relevant hospital direction and the limitation direction or, as the casemay be, the relevant transfer direction and the restriction direction shall cease to have effect on his arrival in the prison or other institution.
(5A) Where the tribunal has made a recommendation under subsection (1)(b) above in the case of a patient who is subject to a restriction direction or a limitation direction—
(a) the fact that the restriction direction or limitation direction remains in force does not prevent the making of any application or reference to the Parole Board by or in respect of him or the exercise by him of any power to require the Secretary of State to refer his case to the Parole Board, and
(b) if the Parole Board make a direction or recommendation by virtue of which the patient would become entitled to be released (whether unconditionally or on licence) from any prison or other institution in which he might have been detained if he had not been removed to hospital, the restriction direction or limitation direction shall cease to have effect at the time when he would become entitled to be so released.
(6) Subsections (3) to (8) of section 73 above shall have effect in relation to this section as they have effect in relation to that section, taking references to the relevant hospital order and the restriction order as references to the hospital direction and the limitation direction or, as the case may be, to the transfer direction and the restriction direction.
(7) This section is without prejudice to sections 50 to 53 above in their application to patients who are not discharged under this section.