Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008
Section 130A of the Mental Health Act 1983 (c.20) (“the Act”) provides that the Secretary of State shall make arrangements to enable Independent Mental Health Advocates (IMHAs) to be available to help qualifying patients. These Regulations contain provisions about the arrangements for the appointment of IMHAs and as to who can be appointed to act as an IMHA.
Regulation 3 directs that where relevant a commissioning body or provider of advocacy services must ensure that an individual who is appointed to act as an IMHA satisfies the conditions in regulation 6. Commissioning bodies are also directed to take reasonable steps to ensure that the different needs and circumstances of qualifying patients, in respect of whom they may exercise the functions under section 130A of the Act (“section 130A functions”) are taken into consideration.
Regulation 4 amends regulation 5(b) of the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 (S.I. 2000/617) to include section 130A functions in the definition of “Functions of NHS bodies”.
Regulation 5 amends the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 (S.I. 2002/2375) so that section 130A functions are exercisable by a commissioning body i.e. (1) Strategic Health Authorities, for performance management purposes , and (2) by Primary Care Trusts. Regulation 3 of those Regulations is amended to provide for circumstances where a Primary Care Trust must exercise section 130A functions for the benefit of qualifying patients who are not otherwise within their area or the area of another Primary Care Trust and who are (1) resident in Scotland, Wales or Northern Ireland but are present in its area, and (2) present in Wales, but liable to be detained under the Act in a hospital or registered establishment in its area. A further amendment is made to regulation 10 of those Regulations preventing Primary Care Trusts exercising section 130A functions jointly with NHS trusts.
Regulation 6 provides that a person can only act as an IMHA if he has satisfied certain requirements as to experience, training, good character and independence. That regulation also provides that in deciding whether to appoint a person to act has an IMHA, regard is to be had to guidance issued from time to time by the Secretary of State.
Regulation 7 specifies those who are not to be treated as concerned in the patient’s treatment (a status that would otherwise prevent them from acting an IMHA).
On 9/2/09 the Joint Committee on Statutory Instruments published their Fifth Report of Session 2008-09, reporting these Regulations for defective drafting, as Regulation 7 is ambiguous.
Paragraphs (a) and (b) of Regulation 7 are not intended to be cumulative, and neither are sub-paragraphs (i) and (ii) of paragraph (a). The Department of Health undertook to amend the Regulation when a suitable opportunity arises, by adding the word "or" in the appropriate places.
New Independent Mental Health Advocate scheme (April 2009)
- 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.