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
The following change made by the Mental Health Act 2007 is relevant:
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  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.
|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|
Mental Health Act 2007 Explanatory Notes - pages 9-10