Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009

In force 1/4/09. This order brings into force the provisions in relation to IMHAs for England (they are already in force in Wales). It also commences the deprivation of liberty safeguards, and introduces transitional provisions: provided the applications are received on or before 30/4/09, 42 days (instead of 21) are allowed for completing assessments for a standard authorisation, and urgent authorisations last for 21 days (instead of 7); urgent authorisations given on or before 30/4/09 cannot be extended.

Sections coming into force

(a) section 30 (independent mental health advocates), in so far as it applies to England and is not already in force;

(b) section 50 (deprivation of liberty) in so far as not already in force;

(c) Schedule 7 (which inserts new Schedule A1 into the 2005 Act) in so far as not already in force;

(d) Schedule 8 (which inserts new Schedule 1A into the 2005 Act);

(e) Schedule 9 (which makes other amendments to the 2005 Act and to other Acts) in so far as not already in force; and

(f) Part 10 (deprivation of liberty) of Schedule 11 and in so far as it relates to that Part, section 55 (repeals and revocations) of the Act.

Schedule of transitional provisions

Interpretation

1. In this Schedule—

“managing authority” shall be construed in accordance with paragraphs 176, 177 and 179 of Schedule A1 to the 2005 Act;

“the Regulations” mean the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008(3);

“standard authorisation” has the same meaning as in paragraph 8 of Schedule A1 to the 2005 Act; and

“urgent authorisation” has the same meaning as in paragraph 9 of Schedule A1 to the 2005 Act.

Standard authorisations

2. Where a request for a standard authorisation is made by the managing authority on or before the 30th April 2009, paragraph (1) of regulation 13 (time frame for assessments) of the Regulations shall apply to the request as if that paragraph read—

“(1) Except as provided in paragraph (2), all assessments required for a standard authorisation must be completed within the period of 42 days beginning with the date on which the supervisory body(4) receives a request for such an authorisation.”

Urgent authorisations

3. Where a managing authority decides to give an urgent authorisation under paragraph 76 of Schedule A1 to the 2005 Act on or before the 30th April 2009, sub-paragraph (2) of paragraph 78 (terms of authorisation) of Schedule A1 to the 2005 Act shall apply as if that sub-paragraph read—

“(2) That period must not exceed 21 days.”

Extensions of authorisations

4. Paragraphs 77(3) to (5) (duty to give authorisation) and paragraphs 84, 85 and 86 (request for extension of duration) of Schedule A1 to the 2005 Act shall not apply in relation to urgent authorisations given on or before the 30th April 2009.

Explanatory note

This Order brings into force section 30 in so far as not already in force and the remaining provisions of section 50 of the Mental Health Act 2007 (“the Act”) and its related consequential amendments and repeals.

Section 30 of the Act inserts provisions about independent mental health advocates into the Mental Health Act 1983 (c.20). This Order commences this section in so far as it is not already in force in England. It is already fully in force in Wales.

Section 50 of the Act makes amendments to provisions of the Mental Capacity Act 2005 (“the 2005 Act”) relating to deprivation of liberty safeguards.

This Commencement Order commences section 50 for all purposes and Schedules 7 and 9 of the Act, in so far as not already in force and Schedule 8.

The Order also makes transitional provisions, which are set out in the Schedule. Paragraph 2 extends time for completing assessments for a standard authorisation from 21 days to 42 days provided that the request is received on or before the 30th April 2009; and paragraph 3 extends the period of an urgent authorisation from 7 to 21 days, provided it is given on or before the 30th April 2009. Paragraph 4 precludes requests for extensions of the duration of urgent authorisations given on or before the 30th April 2009.

Department of Health note

This is from a web page that no longer is on the internet:

The Mental Capacity Act 2005 deprivation of liberty safeguards will be implemented from 1 April 2009. These safeguards will impact significantly on local authorities, Primary Care Trusts (PCTs), care homes and hospitals. The purpose of this note is to explain the transitional arrangements that will apply in England for the month of April 2009 only.

A Commencement Order including the transitional provisions was laid in Parliament on Wednesday 4 February.

The Mental Health Act 2007 (Commencement No.10 and Transitional Provisions) Order 2009 (opens new window) [this link was to the old OPSI website]

The transitional arrangements have been introduced to ease the handling of the anticipated volume of assessments requested by managing authorities (care homes and hospitals) from supervisory bodies (local authorities and PCTs) following the implementation of the safeguards on 1 April 2009.

The transitional arrangements placed before Parliament within a Commencement Order and details of the proposed arrangements were shared in advance of the laying of the Commencement Order in order to assist and inform local planning.

The transitional arrangements will provide an extension of the urgent and standard deprivation of liberty authorisation assessment timescales. Managing authorities will still be required to apply for deprivation of liberty authorisations from 1 April 2009 but transitional arrangements will be in place for one month.

Urgent authorisations given during April 2009 will be effective for a period of 21 calendar days rather than the usual 7 calendar days (as provided for in paragraph 78(2) of Schedule A1 to the Mental Capacity Act 2005).

For urgent authorisations given on 1 May 2009 and thereafter, the usual period of 7 calendar days will apply.

In respect of requests for standard authorisations received by supervisory bodies during April 2009, the timeframe for assessment will be 42 calendar days, rather than the usual 21 calendar days (as provided for in regulation 13 of Statutory Instrument 2008 No. 1858: The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008).

In respect of requests for standard authorisations received by supervisory bodies on 1 May 2009 and thereafter, the usual period of 21 calendar days to complete the standard authorisation process will apply.

The effect of these transitional arrangements is to allow for the possibility that supervisory bodies may take longer to process requests for assessments in the first month of the new arrangements. The objective is to alleviate the pressures that supervisory bodies and managing authorities may face in the initial stages of the deprivation of liberty safeguards implementation process. It is important that both supervisory bodies and managing authorities plan ahead, ideally jointly, to ensure that they are well prepared for the beginning of the new arrangements.

External links

Mental Capacity Act 2005 deprivation of liberty safeguards: transitional arrangements for England - 6/2/09. Internet Archive.

LEGISLATION DATABASE

Full text: Legislation.gov.uk

Type: UK Statutory Instrument🔍

Year: 2009🔍

Number: 139

Subject: Mental Capacity Act 2005 secondary legislation - DOLS🔍 · Mental Health Act 2007 commencement orders🔍

In force: 1/4/09

What links here: