Fundamental principles set out in Act and included in Code of Practice

Section 118 of the Act, as amended, states that the Code of Practice must include a statement of principles which the Secretary of State thinks should inform decisions under the Act. The following matters must be addressed:

(a) respect for patients' past and present wishes and feelings,

(b) respect for diversity generally including, in particular, diversity of religion, culture and sexual orientation (within the meaning of section 35 of the Equality Act 2006),

(c) minimising restrictions on liberty,

(d) involvement of patients in planning, developing and delivering care and treatment appropriate to them,

(e) avoidance of unlawful discrimination,

(f) effectiveness of treatment,

(g) views of carers and other interested parties,

(h) patient wellbeing and safety, and

(i) public safety.

The Secretary of State shall also have regard to the desirability of ensuring:

(a) the efficient use of resources, and

(b) the equitable distribution of services.

The Code of Practice for England, in chapter 1, sets out the following "guiding principles":

• Purpose principle

• Least restriction principle

• Respect principle

• Participation principle

• Effectiveness, efficiency and equity principle

The Code of Practice for Wales, in chapter 1, sets out similar "guiding principles":

• The empowerment principles

• The equity principles

• The effectiveness and efficiency principles

Related changes

The following change made by the Mental Health Act 2007 is relevant:

• Legal status of Code of Practice set out in Act

Extract from Explanatory Notes

Section 8: The fundamental principles

41. Section 8 amends section 118 of the 1983 Act to insert new subsections (2A) to (2D) into the existing provision regarding the requirement to have a Mental Health Act Code of Practice.

42. The new subsection (2A) requires the Secretary of State to include in the Code of Practice a statement of principles that he or she thinks should inform decisions made under the 1983 Act.

43. New subsection (2B) contains a list of issues that the Secretary of State must ensure are addressed in the statement of principles when preparing it. Under new subsection (2C) the Secretary of State must also have regard to the desirability of ensuring the efficient use of resources and the equitable distribution of services.

44. The responsibility for preparing and revising the Code of Practice in relation to Wales was transferred to the National Assembly for Wales, but, by virtue of the Government of Wales Act 2006, this function transferred to and is now exercisable by the Welsh Ministers.

45. New subsection (2D) provides that the people listed in section 118(1)(a) and (b) shall have regard to the Code of Practice. This is to confirm in statute the status of the Code of Practice, as elaborated on by the House of Lords in the case of R v Ashworth Hospital Authority (now Mersey Care National Health Service Trust) ex parte Munjaz [2005] UKHL 58. Those people listed in section 118(1)(a) and (b) (as amended by the 2007 Act) are registered medical practitioners, approved clinicians, managers and staff of hospitals, independent hospitals and care homes, and approved mental health professionals dealing with patients admitted to hospital, or subject to guardianship or SCT under the 1983 Act; and registered medical practitioners and members of other professions dealing with patients suffering from a mental disorder.

Commencement

Date in force	Commencement order	MHA 2007 section	MHA 1983 sections affected
3/11/08	Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008	8	s118

Resources

Mental Health Act 2007 Explanatory Notes - pages 9-10

INFORMATION

Changes made by MHA 2007 category:

• New procedure for renewal of detention
• Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
• Approved Mental Health Professional replaces Approved Social Worker
• Supervised Community Treatment replaces Supervised Discharge
• Mental disorder no longer split into separate classifications
• Some exclusions to definition of mental disorder have been removed
• Hospital directions under s45A apply to any mental disorder
• New definition of medical treatment
• Civil partners are treated as if married when determining nearest relative
• Additional safeguards for ECT introduced in new s58A
• Treatment while under SCT is covered by new Part 4A
• NHS Foundation Trusts discharge power problem remedied
• Patients can be transferred between places of safety under s135 and s136
• 16- or 17-year-old with capacity cannot be detained on basis of parental consent
• Restriction orders can no longer be time-limited
• Legal status of Code of Practice set out in Act
• New Independent Mental Health Advocate scheme
• New requirements for age-appropriate accommodation for children
• Fundamental principles set out in Act and included in Code of Practice
• Automatic reference scheme under s68 changed
• Minor drafting error in MCA 2005 corrected
• Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
• Limitation to the exceptions to the duty to instruct IMCA
• Reference to Local Health Boards inserted into Act
• Procedure for making of instruments by Welsh Ministers set out
• Organisation of Mental Health Review Tribunal changed
• Transitional provisions until full implementation of MHA 2007
• New cross-border arrangements for leave and transfer
• New regulations on conflicts of interest
• SOAD certificate becomes invalid when patient loses or gains capacity
• Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
• Higher penalties for offences under Act
• Hospital direction patients can no longer apply to Tribunal during first six months
• Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
• Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
• Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
• Appropriate treatment test replaces treatability test and applies to all patients under long-term detention

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What links here:

• 16- or 17-year-old with capacity cannot be detained on basis of parental consent
• Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
• Additional safeguards for ECT introduced in new s58A
• Approved Mental Health Professional replaces Approved Social Worker
• Automatic reference scheme under s68 changed
• Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
• Civil partners are treated as if married when determining nearest relative
• Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
• Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
• Legal status of Code of Practice set out in Act
• MHA 1983 s118
• Mental Health Act 2007 Overview