The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008
| Jurisdiction | UK Non-devolved |
| Citation | SI 2008/1210 |
| Year | 2008 |
2008 No. 1210 (C. 52)
Mental Health, England And Wales
The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008
Made 28th April 2008
Laid before Parliament 7th May 2008
Coming into force in accordance with article 1(1)
The Secretary of State, in exercise of the powers conferred by sections 54(1) and (2), 56(1) and (4) and 57 of the Mental Health Act 20071, and with the agreement of the Welsh Ministers, makes the following Order:
PART 1
GENERAL AND COMMENCEMENT OF 2007 ACT
Citation, commencement and interpretation
1.—(1) This Order may be cited as the Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 and shall come into force—
(a)
(a) in respect of article 12, on 4th May 2009; and
(b)
(b) in all other respects, on 3rd November 2008 immediately after the coming into force of the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 20082.
(2) In this Order—
“the 1983 Act” means the Mental Health Act 19833;
“the 2007 Act” means the Mental Health Act 2007;
“ACUS community patient” has the meaning given by article 10(2) of this Order;
“ACUS patient” means any patient who was subject to after-care under supervision immediately before the commencement day and who remains so subject in accordance with provision made by this Order;
“commencement day” means the day that section 36 of the 2007 Act comes into force in accordance with article 2 of this Order;
“community responsible medical officer” has the meaning given by section 34(1) of the 1983 Act immediately before the coming into force of this Order; and
“subject to after-care under supervision” has the meaning given by section 25A(2) of the 1983 Act immediately before the coming into force of this Order.
(3) An expression used in this Order and in the 1983 Act has the same meaning in this Order as it has in that Act.
(4) In any of the provisions of the 1983 Act which are saved or which are modified in relation to an ACUS patient or an ACUS community patient by this Order, a reference to—
(a)
(a) the approved social worker shall be construed as a reference to the approved mental health professional;
(b)
(b) the responsible medical officer shall be construed as a reference to the responsible clinician.
Commencement of provisions of the 2007 Act and consequential amendments and repeals
2. The following provisions of the 2007 Act shall come into force on 3rd November 2008—
(a) section 1(4) (removal of categories of mental disorder), insofar as it gives effect to paragraph 13 of Schedule 1;
(b) section 32(4) (community treatment orders, etc), insofar as it gives effect to paragraphs 16, 17, 21(4), 23, 24 and 25 of Schedule 3;
(c) section 36 (repeal of provisions for after-care under supervision);
(d) section 55 (repeals and revocations), insofar as it gives effect to Part 5 of Schedule 11.
PART 2
ACUS PATIENTS: SAVINGS, MODIFICATIONS AND TRANSITIONAL PROVISIONS
ACUS patients
3. This Part of this Order shall apply in relation to an ACUS patient and such a patient shall—
(a) continue to be subject to after-care under supervision,
(b) have their case dealt with, and
(c) cease to be subject to after-care under supervision,
in accordance with the following provisions.
Savings
4.—(1) Notwithstanding the coming into force of the provisions of the 2007 Act specified in article 2 of this Order, the following provisions of the 1983 Act shall continue to have effect in relation to an ACUS patient—
(a)
(a) the definitions of “severe mental impairment”, “mental impairment” and “psychopathic disorder” in section 1(2) (application of Act: “mental disorder”), insofar as they relate to sections 25A(4) (application for supervision), 25G(4) (duration and renewal of after-care under supervision) and 72(4A) (powers of tribunals);
(b)
(b) subsections (2), (4) (insofar as it relates to section 72(4A)) and (8) of section 25A (application for supervision);
(c)
(c) subsections (6) and (7) of section 25C (supervision applications: supplementary);
(d)
(d) section 25D (requirement to secure receipt of after-care under supervision);
(e)
(e) section 25E (review of after-care under supervision etc);
(f)
(f) section 25F(1) (reclassification of patient subject to after-care under supervision), where a report referred to in that section was furnished by a responsible medical officer prior to the commencement day, insofar as it relates to sections 66(1)(gb) and 66(2)(d) (applications to tribunals);
(g)
(g) subsections (2) and (4) of section 25F (reclassification of patient subject to after-care under supervision);
(h)
(h) the following subsections of section 25G (duration and renewal of after-care under supervision)—
(i) subsection (1), subject to article 7;
(ii) subsections (2), (3) and (7) insofar as they operate to renew a period of after-care under supervision that would otherwise end prior to the commencement day, subject to article 7;
(iii) subsection (4), insofar as it relates to subsection (3) of that section and section 72(4A) (powers of tribunals);
(i)
(i) section 25H (ending of after-care under supervision);
(j)
(j) section 25I(1)(a) (special provisions as to patients sentenced to imprisonment etc) and subsection (2) of that section insofar as it relates to section 25I(1)(a);
(k)
(k) the definitions of “the community responsible medical officer” and “the supervisor” in section 34(1) (interpretation of Part 2);
(l)
(l) section 34(1A) (interpretation of Part 2);
(m)
(m) paragraphs (ga), (gb) and (gc) of section 66(1) (applications to tribunals);
(n)
(n) section 66(2)(fa) (applications to tribunals);
(o)
(o) section 72(4A) (powers of tribunals), subject to article 5;
(p)
(p) section 117(2A) (after-care);
(q)
(q) section 127(2A) (ill-treatment of patients);
(r)
(r) the definitions of “supervision application” and “responsible after-care bodies” in section 145(1) (interpretation), and
(s)
(s) section 145(1A) (interpretation).
(2) None of the provisions saved by paragraph (1) shall operate to allow a Primary Care Trust or a Local Health Board to accept a supervision application on or after the commencement day.
Transfer of Mental Health Review Tribunal functions
5. As regards England, where an order has been made under section 30 of the Tribunals, Courts and Enforcement Act 20074(transfer of functions of certain tribunals) transferring the functions of a Mental Health Review Tribunal for a region of England to the First-tier Tribunal established by section 3 of that Act (the First-tier Tribunal and the Upper Tribunal), the reference in section 72(4A) of the 1983 Act (powers of tribunals), as saved by this Order, to a Mental Health Review Tribunal shall be read as a reference to the First-tier Tribunal.
Consequential modifications to the 1983 Act
6. The following provisions of the 1983 Act shall be modified in their application to an ACUS patient as follows—
(a) insofar as it relates to sections 25A(4), 25G(4) and 72(4A), in section 1(2), in the definition of “mental disorder”, for “any disorder or disability of the mind” substitute “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”;
(b) in section 17A (community treatment orders)—
(i) in subsection (1), for “responsible clinician” substitute “community responsible medical officer” and for “discharge a detained patient from hospital” substitute “direct that a patient subject to after-care under supervision cease to be subject to such supervision,”;
(ii) in subsection (4), for “responsible clinician” substitute “community responsible medical officer”;
(iii) in subsection (5)(c), for “without his continuing to be detained in hospital” substitute “without his being detained in hospital”; and
(iv) in subsection (6), for “responsible clinician” substitute “community responsible medical officer”;
(c) in section 17B(2) (conditions in community treatment orders), for “responsible clinician” substitute “community responsible medical officer”;
(d) in section 32(2)(c) (regulations for purposes of Part 2), after “guardianship” insert “or to after-care under supervision”;
(e) in section 33 (special provisions as to wards of court), after subsection (4), insert—
“5 Where a supervision application has been made in respect of a minor who is a ward of court, the provisions of this Part of this Act relating to after-care under supervision have effect in relation to the minor subject to any order which the court may make in the exercise of its wardship jurisdiction.”;
(f) in section 66 (applications to tribunals)—
(i) in subsection (1)(i), at end, insert “or, in the cases mentioned in paragraphs (ga), (gb) and (gc), by his nearest relative if he has been (or was entitled to be) informed under this Act of the report or acceptance, and”;
(ii) in subsection (2)(c), after “paragraph (c)” insert “or (ga)”;
(iii) in subsection (2)(d), for “in the case mentioned in paragraph (g)” substitute “in the cases mentioned in paragraphs (g) and (gb)”;
(g) in section 67(1) (references to tribunals by Secretary of State concerning Part 2 patients), after “or subject to guardianship” insert “or to after-care under supervision”;
(h) in section 76(1) (visiting and examination of patients), after “subject to guardianship” insert “or to after-care under supervision (or, if he has not yet left hospital, is to be subject to after-care under supervision after he leaves hospital)”;
(i) in section 77(3) (general provisions concerning...
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