Mental Health Act 2007 (Commencement No. 7 and Transitional Provisions) Order 2008
MHA 2007 sections affected
- (a) section 1 and Schedule 1, insofar as not already in force;
- (b) sections 2 to 16;
- (c) section 18, insofar as it applies to England and is not already in force;
- (d) section 21, insofar as it gives effect to Schedule 2 in relation to England;
- (e) section 22, insofar as not already in force;
- (f) sections 23 to 25;
- (g) sections 27 to 29;
- (h) section 31(1), (2) and (4);
- (i) section 32 and Schedule 3, insofar as they are not already in force, and Schedule 4;
- (j) sections 33 and 34;
- (k) section 35, insofar as not already in force;
- (l) section 37;
- (m) section 38(1) and (2), and insofar as they apply in relation to Wales, subsections (3)(e), (5)(for the purposes of subsection (7)(b)), and (7)(b);
- (n) section 39(1) and (2), insofar as it gives effect to paragraphs 1, 3, 4, 6, 10, 12, 15 to 17, and, insofar as they are not already in force, paragraphs 18 and 21 of Schedule 5;
- (o) section 48 which gives effect to Schedule 6;
- (p) section 55, insofar as it gives effect to Parts 1 to 4 and 6, 8 and 9 of Schedule 11.
There is also a schedule of TRANSITIONAL AND SAVING PROVISIONS, reproduced below.
Schedule of transitional and saving provisions
1. In this Schedule—
- “ASW” means an approved social worker as defined in section 145(1) of the 1983 Act immediately before the commencement day;
- “AMHP” means an approved mental health professional;
- “commencement day” means 3rd November 2008;
- “LSSA” means a local social services authority;
- “responsible clinician” means a responsible clinician as defined in section 34(1) in relation to Part 2 of the 1983 Act and in section 55(1) in relation to Part 3 of the 1983 Act;
- “RMO” means a responsible medical officer as defined in section 34(1) in relation to Part 2 of the 1983 Act and in section 55(1) in relation to Part 3 of the 1983 Act immediately before the commencement day;
- “RMP” means a registered medical practitioner;
- “the Approval Regulations” means the Mental Health (Approved Mental Health Professionals)(Approval)(England) Regulations 2008 F5 ;
- “under 18 informal patient” means a person to whom section 56(5) of the 1983 Act applies.
Supervised Community Treatment: transitional provisions in relation to amendment to other Acts
2. — (1) Pending the commencement of Part 3 of the Constitutional Reform Act 2005 F6 , the application of the 2007 Act shall be modified as described in this paragraph.
(2) In the provisions specified in sub-paragraph (3), for “Supreme Court” in each place substitute “House of Lords”.
(3) The provisions mentioned in sub-paragraph (2) are—
- (a) section 5A(6) of the Administration of Justice Act 1960 F7 , as inserted by paragraph 1 of Schedule 4 to the 2007 Act;
- (b) section 37A(1), (4) and (7) of the Criminal Appeal Act 1968 F8 , as inserted by paragraph 2(3) of Schedule 4 to the 2007 Act;
- (c) section 43A (3) and (6) of the Courts-Martial (Appeals) Act 1968 F9 , as inserted by paragraph 3(4) of Schedule 4 to the 2007 Act.
3. — (1) Pending the commencement of paragraph 21(d) and (f) of Schedule 8 to the Armed Forces Act 2006 F10 , the application of the 2007 Act shall be modified as described in sub-paragraph (2).
(2) In section 20(4A) of the Courts-Martial (Appeals) Act 1968, as inserted by paragraph 3(2) of Schedule 4 to the 2007 Act, for “subsection (3A)” substitute “subsection (5)”.
(3) Pending the commencement of paragraph 43 of Schedule 8 to the Armed Forces Act 2006, the application of the 2007 Act shall be modified as described in sub-paragraph (4).
(4) In section 43A(1)(b) of the Courts-Martial (Appeals) Act 1968, as inserted by paragraph 3(4) of Schedule 4 to the Act, for “Director of Service Prosecutions” substitute “Defence Council”.
4. Subject to paragraphs 6 to 11, where a person is approved as an ASW by an LSSA in England immediately before the commencement day, that person shall be treated as an AMHP approved by that LSSA in relation to England ( “an English approval”).
5. Any decision made or action taken by an ASW before the commencement day shall be treated as made or taken by an AMHP.
AMHPs approved in relation to England
6. Subject to regulation 7 of the Approval Regulations, an English approval shall be for the unexpired period of that person's approval as an ASW.
7. Regulation 7 of the Approval Regulations shall apply to an English approval as if paragraph 2(b) of that regulation read—
- "(b) if it is not satisfied that the AMHP has appropriate competence taking into account the matters set out in Schedule 2;".
8. An English approval shall be subject to the conditions set out in regulation 5 of the Approval Regulations.
9. Any ASW whose registration as a social worker is suspended on the commencement day shall be treated as an AMHP whose approval is suspended in accordance with regulation 6 of the Approval Regulations for so long as that registration is suspended.
10. An English approval may be suspended in accordance with regulation 6 of the Approval Regulations.
11. An LSSA in England shall record details of an English approval in accordance with regulation 8 of the Approval Regulations, as if paragraph (1)(c) of that regulation read—
- "(c) the date that the person was approved as an ASW, and the date on which that approval expires;".
Approved clinicians and responsible clinicians
12. On the commencement day a decision made or action taken under the Part of, or section of, the 1983 Act specified in column 1 by a person named in column 2, shall be treated as though it had been made or taken by the person specified in column 3—
|Provision in 1983 Act||Named person||Treated as taken by|
|Part 2||RMO||responsible clinician|
|Part 2||appropriate medical officer||appropriate practitioner|
|Sections 36(4), 38(5), 41(3)(c) and (6), 45B(3), 49(3), 51(4), 52(5) and (7)||RMO||responsible clinician|
|Sections 57(2)(a) and 58(3)(b)||RMO||responsible clinician or the approved clinician in charge of the treatment in question|
|Sections 58(3)(a), 61(1)(the first time it appears) and 63||RMO||approved clinician in charge of the treatment|
|Section 35(4) and (5)||RMP||approved clinician|
|Sections 36(3), 37(4), 38(4),45A(5)||RMP who would be in charge of his treatment||approved clinician who would have overall responsibility for his case|
|Section 44(2)||RMP who would be in charge of the offender's treatment||approved clinician who would have overall responsibility for the offender's case|
|Sections 50(1), 51(3) and 53(2)||RMO or any other RMP||responsible clinician or any other approved clinician|
|Section 134||RMP in charge of the treatment of the patient||approved clinician with overall responsibility for the patient's case|
Electro-convulsive therapy13. Where before the commencement day, an under 18 informal patient has been receiving, or is about to receive, electro-convulsive therapy, that patient may receive, or continue to receive, such treatment pending compliance with section 58A for a period of up to 14 days beginning with the commencement day.