The Mental Health Act 2007 (Commencement No. 6 and After-care under Supervision: Savings, Modifications and Transitional Provisions) Order 2008

EXPLANATORY NOTE

(This note is not part of the Order)

This Order brings into force the provisions of the Mental Health Act 2007 (c.12) (“the 2007 Act”) that repeal the provisions relating to after-care under supervision in the Mental Health Act 1983 (c.20) (“the 1983 Act”). The Order also makes transitional provision for patients subject to after-care under supervision immediately prior to that date. The Order provides for a transitional period of six months in which the status of the patient as being subject to after-care under supervision is maintained, and requires, within that period, the patient to be examined by his or her community responsible medical officer to determine whether the patient should be detained for assessment or treatment, made subject to guardianship, placed on a community treatment order or should cease to be subject to after-care under supervision.

Part 1 of the Order brings into force on 3rd November 2008 (“the commencement day”) section 36 of the 2007 Act, which repeals the provisions relating to after-care under supervision of the 1983 Act. It also brings into force on the commencement day section 32(4) of the 2007 Act, which gives effect to Schedule 3 of that Act, and section 55 of the 2007 Act, which gives effect to Schedule 11 of that Act, to the extent that those Schedules make amendments or repeals consequential upon the repeal of the after-care under supervision provisions by section 36.

Part 2 of the Order applies in relation to patients subject to after-care under supervision immediately prior to the commencement day (“ACUS patients”).

Article 4 saves those provisions of the 1983 Act which are necessary to ensure the continuation of after-care under supervision for ACUS patients.

Article 5 provides that the reference to a Mental Health Review Tribunal for a region of England in section 72(4A) of the 1983 Act (as saved by article 4) is read as a reference to the First-tier Tribunal in the event of a transfer of functions.

Article 6 makes consequential modifications to provisions of the 1983 Act to ensure the continued application of provisions of the 1983 Act to ACUS patients. It also amends the criteria for the placing of an ACUS patient on a community treatment order.

Article 7 provides that the period of a patient’s after-care under supervision that would otherwise end on or around the commencement day is extended to the end of seven days beginning with the commencement day.

Article 8—

• places a duty on the community responsible medical officer to determine, prior to the end of the specified period whether or not an ACUS patient meets the grounds for the making of an application for admission for assessment or treatment, a guardianship application or the criteria for a community treatment order and allows a recommendation to be made to that effect

• provides that where the community responsible medical officer recommends the making of an application for admission for assessment or treatment, or a guardianship application in respect of an ACUS patient, that recommendation must comply with the requirements of the 1983 Act

• provides that the community responsible medical officer may make a community treatment order in respect of an ACUS patient provided the specified conditions for the making of that order are met

• provides that the community responsible medical officer must direct that the patient cease to be subject to after-care under supervision where the patient does not meet any of the grounds or criteria referred to.

Article 9 provides that an ACUS patient will cease to be subject to after-care under supervision, in addition to the circumstances set out in the 1983 Act, where an application for admission for assessment (made as a result of a determination made under the Order) or a community treatment order is made in respect of the patient. A patient will also cease to be subject to after-care under supervision if fourteen days beginning with the making of a determination by the community responsible medical officer have elapsed and none of the other circumstances apply to end the patient’s subjection to after-care under supervision. If none of those circumstances arise, the patient will cease to be subject to after-care under supervision at the end of the specified period.

Part 3 of the Order applies to patients who were placed on a community treatment order by the community responsible medical officer in accordance with Part 2 of the Order and amends the provisions of the 1983 Act dealing with community treatment orders in their application to such patients. In particular, article 11 provides that when such a patient’s community treatment order is revoked, the patient is deemed to have been detained in accordance with an application for treatment under section 3 of the 1983 Act.

Part 4 of the Order provides, in article 12, that the Mental Health (After-care under Supervision) Regulations 1996 (S.I. 1996/294) are revoked with effect from 4th May 2009.

A full impact assessment has not been produced for this instrument as no impact on the private or voluntary sectors is foreseen.