Mental Health Law Online

The full text of the Act is available from this page: Mental Health Act 2007. See also: Mental Health Act 2007 Explanatory Notes.

The Mental Health Act 2007 was given Royal Assent on 19 July 2007. Some sections are already in force but 3 November 2008 is the general implementation date. See Mental Health Bill 2006 for some background information, and Mental Health Act 1983 Overview and Mental Capacity Act 2005 Overview for further details. Amendments made to the Mental Health Act 1983 and Mental Capacity Act 2005 by the 2007 Act are incorporated into the text on this site; amendments not yet in force are shown separately on the same page.

The effect of the Act

The amendments

The major amendments made by the 2007 Act are listed below. Each page contains a summary of the change, when it comes into force, and an extract from the Mental Health Act 2007 Explanatory Notes where appropriate.

Professional roles:

• Approved Mental Health Professional replaces Approved Social Worker 3/11/08

• Responsible Clinician/Approved Clinician replaces Responsible Medical Officer 3/11/08

• New regulations on conflicts of interest 3/11/08

• New procedure for renewal of detention 3/11/08

Community Treatment Orders:

• Supervised Community Treatment replaces Supervised Discharge 3/11/08

Definition of mental disorder:

• Mental disorder no longer split into separate classifications 3/11/08
• Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder) 3/11/08
• Some exclusions to definition of mental disorder have been removed 3/11/08
• Hospital directions under s45A apply to any mental disorder 3/11/08

Treatability test:

• Appropriate treatment test replaces treatability test and applies to all patients under long-term detention 3/11/08
• New definition of medical treatment 3/11/08

Nearest relative:

• Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability 3/11/08
• Civil partners are treated as if married when determining nearest relative 1/12/07

Treatment safeguards:

• Additional safeguards for ECT introduced in new s58A 3/11/08
• Treatment while under SCT is covered by new Part 4A 3/11/08
• SOAD certificate becomes invalid when patient loses or gains capacity 3/11/08

Code of Practice:

• Legal status of Code of Practice set out in Act
• Fundamental principles set out in Act and included in Code of Practice

Children:

• 16- or 17-year-old with capacity cannot be detained on basis of parental consent 1/1/08
• New requirements for age-appropriate accommodation for children (April 2010)

Criminal clients:

• Hospital direction patients can no longer apply to Tribunal during first six months 3/11/08
• Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT 1/10/07
• Restriction orders can no longer be time-limited 1/10/07
• Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients 3/11/08

Mental Health Review Tribunal:

• Automatic reference scheme under s68 changed 3/11/08
• Organisation of Mental Health Review Tribunal changed 3/11/08 (partially)

Wales:

• Reference to Local Health Boards inserted into Act
• Procedure for making of instruments by Welsh Ministers set out

Mental Capacity Act 2005:

• Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005 (April 2009)
• Limitation to the exceptions to the duty to instruct IMCA
• Minor drafting error in MCA 2005 corrected

Misc:

• NHS Foundation Trusts discharge power problem remedied 24/7/07
• Higher penalties for offences under Act 1/10/07
• Patients can be transferred between places of safety under s135 and s136 30/4/08
• New Independent Mental Health Advocate scheme (April 2009)
• Transitional provisions until full implementation of MHA 2007
• New cross-border arrangements for leave and transfer 3/11/08

The Acts which are amended

The 2007 Act will amend or has amended:

• the Mental Health Act 1983 - all the proposed amendments can be read on this site, alongside the current law

• the Mental Capacity Act 2005 - only some of the proposed amendments have been added to this site, but all in force amendments listed on this page have been added

• the Domestic Violence Crime and Victims Act 2004

More minor amendments are made to various other enactments.

Implementation of the Act

Implementation plan

DH commencement plan - This document lists each section of the 2007 Act and the date on which it is intended that the section will come into force. Updated on 9 May 2008.

NHS Confederation Briefing: Implementing the Mental Health Act 2007: What boards need to know and do - Sept 2008, published on CSIP website 23/10/08.

Some of the commencement orders have associated guidance documents and these can be located on the commencement order pages. For guidance documents on transitional arrangements, please see Transitional provisions until full implementation of MHA 2007.

See also:

• Mental Health Act 2007 in force dates

Commencement orders

See the individual pages below for details of which MHA 1983 sections are affected by each Commencement Order.

• Mental Health Act 2007 (Commencement No. 1) Order 2007 The provisions around NHS Foundation Trusts (section 45 MHA 2007) came into force on 24/7/07.

• Mental Health Act 2007 (Commencement No. 2) Order 2007 1/10/07 - fixing minor drafting error in MCA 2005

• Mental Health Act 2007 (Commencement No. 3) Order 2007 1/10/07, 1/12/07, 1/1/08 - various provisions: approval of courses etc for approved mental health professionals; amendment to section 62 of Care Standards Act 2000; cross-border arrangements; time-limited restriction orders; conditionally discharged patients subject to limitation directions; offence of ill-treatment: increase in maximum penalty on conviction on indictment; local health boards; independent mental capacity advocacy service: exceptions; civil partners (1/12/07); information admission of patients aged 16 and 17 (1/1/08)

• Mental Health Act 2007 (Commencement No. 4) Order 2008 1/4/08 - (1) some provisions for the purpose only of making regulations; (2) others relating to: regulations as to approvals in relation to England and Wales; approved mental health professionals; conflicts of interest; independent mental health advocates; authority to treat; cross-border arrangements; Welsh Ministers: procedure for instruments; consequential provisions; (3) amendments to MCA 2005

• Mental Health Act 2007 (Commencement No. 5 and Transitional Provisions) Order 2008 30/4/08 - amending s135 and s136 re places of safety

• Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008 3/11/08, 4/5/09 - SCT

• Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008 3/11/08 - most of the rest of the Act

• Mental Health Act 2007 (Commencement No. 8 and Transitional Provisions) Order 2008 3/11/08

• Mental Health Act 2007 (Commencement No. 9) Order 2008 28/10/08 - cross-border arrangements

• Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009 — In force 1/4/09. This order brings into force the provisions in relation to IMHAs for England (they are already in force in Wales). It also commences the deprivation of liberty safeguards, and introduces transitional provisions: provided the applications are received on or before 30/4/09, 42 days (instead of 21) are allowed for completing assessments for a standard authorisation, and urgent authorisations last for 21 days (instead of 7); urgent authorisations given on or before 30/4/09 cannot be extended.
• Mental Health Act 2007 (Commencement No. 11) Order 2010 — This order brings new s131A (Accommodation, etc for children) into force from 1/4/10. It applies to patients under 18 who are liable to be detained under the MHA or admitted informally. The hospital managers must ensure that the patient's environment is suitable having regard to his age (subject to his needs); they must consult a person with knowledge or experience of such cases. SI 2010/143.

Secondary legislation - England & Wales

The following is an automatically-generated list of the pages in Category:Mental Health Act 2007 secondary legislation - England and Wales:

• Mental Health (Mutual Recognition) Regulations 2008 — These regulations set out when English s12 practitioners and approved clinicians can be treated as approved in Wales, and vice versa.
• Mental Health Act 2007 (Consequential Amendments) Order 2008 — This Order amends Acts and SIs as a consequence of the Mental Health Act 2007.

Secondary legislation - England

The following is an automatically-generated list of the pages in Category:Mental Health Act 2007 secondary legislation - England:

• Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 (Commencement No 1 and Transitional Provisions) Order of Council 2009 — Yes, that is the real name. Among other over-complicated things, transitional arrangements relating to psychologist AMHPs and BIAs come into force on 1/7/09. Until 30/6/12, they can either be chartered psychologists (registered by the BPS) or psychologists registered by the HPC. It is expected that before the end of the transitional period the legislation will be amended to refer only to those registered by the HPC.
• Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008 — These regulations relate to the approval of persons to act as AMHPs.
• Mental Health (Conflicts of Interest) (England) Regulations 2008 — These regulations set out when there is a potential conflict of interest preventing an AMHP making an application or a doctor a medical recommendation.
• Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2008 — These regulations amend the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 which, like these amendments, come into force on 3/11/08.
• Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2012 — These regulations amend the Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 by introducing a new form snappily entitled 'Form CTO12 - Regulation 28(1A) - Mental Health Act 1983 section 64C(4A) - certificate that community patient has capacity to consent (or if under 16 is competent to consent) to treatment and has done so (Part 4A consent certificate)'. This form will be for the Responsible Clinician to fill in, when the requirement for a SOAD certificate in these circumstances is removed by s299 Health and Social Care Act 2012. In force immediately after that section comes into force (on such day as the Secretary of State may by order appoint).
• Mental Health (Hospital, Guardianship and Treatment) (England) Regulations 2008 — These Regulations apply to England only and supersede the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 on 3/11/08. They have been amended by the Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2008, which will come into force immediately after the main Regulations, and by the Mental Health (Hospital, Guardianship and Treatment) (England) (Amendment) Regulations 2012 which came into force on 1/6/12.
• Mental Health (Nurses) (England) Order 2008 — This order replaces the Mental Health (Nurses) Order 1998 in England. It sets out the classes of nurses who can use the six-hour s5(4) holding power. The nurses who can use this power are those registered in either Sub-Part 1 or 2 of the register maintained under article 5 of the Nursing and Midwifery Order 2001 whose registration includes an entry indicating that the nurse’s field of practice is either mental health nursing or learning disabilities nursing. In force 3/11/08 (England).
• Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008 — These Regulations contain provisions about the arrangements for the appointment of IMHAs and as to who can be appointed to act as an IMHA. In force 1/4/09.
• Mental Health Act 1983 Approved Clinician (General) (Amendment) Directions 2009 — An amendment to Mental Health Act 1983 Approved Clinician (General) Directions 2008, in force 1/7/09, to reflect the statutory regulation of psychologists by the Health Professions Council from that date. Psychologist ACs must be registered with the HPC.
• Mental Health Act 1983 Approved Clinician (General) Directions 2008 — These directions replace the Mental Health Act 1983 Approved Clinician Directions 2008.
• Mental Health and Mental Capacity (Advocacy) Amendment (England) Regulations 2009 — These Regulations confirm that the activities of IMCAs and IMHAs are "regulated activities" for the purposes of the Safeguarding Vulnerable Groups Act 2006, and require them to have an enhanced criminal record certificate from 12/10/09. In force 12/10/09.
• National Health Service (Charges for Drugs and Appliances) Amendment Regulations 2008 — The Regulations exempt community patients from prescription charges in most circumstances. However, while patients are subject to SCT they cannot be discharged from the the s117 duty to provide free after-care services, so they should not be charged for treatment for mental disorder.

Secondary legislation - Wales

The following is an automatically-generated list of the pages in Category:Mental Health Act 2007 secondary legislation - Wales:

• Mental Health (Approval of Persons to be Approved Mental Health Professionals) (Wales) Regulations 2008 — These regulations relate to the approval of persons to act as AMHPs.
• Mental Health (Conflicts of Interest) (Wales) Regulations 2008 — These regulations set out when there is a potential conflict of interest preventing an AMHP making an application or a doctor a medical recommendation.
• Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) (Amendment) Regulations 2012 — These Regulations amend the Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008 by adding a new form form CO 8 entitled 'Mental Health Act 1983 Part 4A — certificate of consent to treatment for community patient (Approved Clinician Part 4A certificate)'. This form will be for the Responsible Clinician to fill in, when the requirement for a SOAD certificate in these circumstances is removed by s299 Health and Social Care Act 2012.
• Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008 — These are the main regulations dealing with exercise of Mental Health Act 1983 powers, and also set out the mandatory statutory forms. They were amended by the Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) (Amendment) Regulations 2012 with effect from 2/6/12.
• Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2008 — These regulation deal with arrangements for appointment of IMHAs, and set out who can be appointed as IMHAs.
• Mental Health (Nurses) (Wales) Order 2008 — This order replaces the Mental Health (Nurses) Order 1998 in Wales. It sets out the classes of nurses who can use the six-hour s5(4) holding power. It comes into force on 3/11/08.
• Mental Health Act 1983 Approved Clinician (Wales) Directions 2008 — These directions make provision for the approval of persons as approved clinicians in Wales.

Secondary legislation - Scotland

The following is an automatically-generated list of the pages in Category:Mental Health Act 2007 secondary legislation - Scotland:

• Mental Health (England and Wales Cross-border transfer: patients subject to requirements other than detention) (Scotland) Regulations 2008 — These Scottish Regulations provide for the transfer of community patients between England & Wales and Scotland. Scotland has had Community Treatment Orders and Compulsion Orders under their Mental Health (Care and Treatment) (Scotland) Act 2003. The Regulations are needed now that England & Wales have a Community Treatment Order.

Updates

Check these sites for news of updates:

• Statute Law Database: search results for "Mental Health Act" - for recent commencement orders etc.

• Department of Health: "Mental Health Act 2007 - commencement orders, regulations, and other secondary legislation" page

• Care Services Improvement Partnership News/Update Bulletins - Final update (number 12) published on March 2009. This is a link to the archived content of the website.

Resources

Legislation: see Mental Health Act 2007

Documents:

• Mental Health Act 2007 - frequently asked questions, from DH website - published 31/10/08

• CSIP Implementation Programme for the MHA 2007

• Mental Health Act Commission Policy briefing issue 17 - dealing with the MHA 2007

• Royal College of Psychiatrists MH Bill newsletter 14 - including a summary of the MHA 2007.

• King's Fund Mental Health Act 2007 briefing - published 8/12/08

• Department of Health, 'Post-legislative assessment of the Mental Health Act 2007: Memorandum to the Health Committee of the House of Commons' (Cm 8408, 28/8/12)

Related books

• Richard Jones, Mental Health Act Manual (17th edn, Sweet & Maxwell 2014)
• Paul Bowen, Blackstone's Guide to the Mental Health Act 2007 (Oxford 2007)
• Brenda Hale, Mental Health Law (5th edn, Sweet & Maxwell 2010)
• Larry Gostin et al (eds), Principles of Mental Health Law and Policy (Oxford 2010)