New definition of medical treatment
The old definition in s145 was:
- "medical treatment" includes nursing, and also includes care, habilitation and rehabilitation under medical supervision;
From 3/11/08, under the MHA 2007 changes, s145 states that:
- "medical treatment" includes nursing, [psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below)
Subsection (4) states:
- Any reference in this Act to medical treatment, in relation to mental disorder, shall be construed as a reference to medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations.
There are two main effects of this change:
- Medical treatment no longer must be given under medical supervision. See also Responsible Clinician replaces Responsible Medical Officer
- The effect of the abolition of the "treatability test" is diminished by subsection (4). See also Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
Extract from Explanatory Notes
Section 7: Change in definition of "medical treatment"
38. Subsection (1) of section 7 amends the definition of medical treatment in section 145(1) to read:
- "medical treatment" includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care (but see also subsection (4) below)".
39. Accordingly, the definition covers medical treatment in its normal sense as well as the other forms of treatment mentioned. Practical examples of psychological interventions include cognitive therapy, behaviour therapy and counselling. "Habilitation" and "rehabilitation" are used in practice to describe the use of specialised services provided by professional staff, including nurses, psychologists, therapists and social workers, which are designed to improve or modify patients' physical and mental abilities and social functioning. Such services can, for example, include helping patients learn to eat by themselves or to communicate for the first time, or preparing them for a return to normal community living. The distinction between habilitation and rehabilitation depends in practice on the extent of patients' existing abilities "rehabilitation" is appropriate only where the patients are relearning skills or abilities they have had before.
40. Subsection (2) inserts a new subsection (4) in section 145 of the 1983 Act (interpretation) to provide that references in the 1983 Act to medical treatment for mental disorder mean medical treatment the purpose of which is to alleviate, or prevent a worsening of, the disorder or one or more of its symptoms or manifestations. This applies to all references in the 1983 Act to medical treatment in relation to mental disorder, including references to appropriate medical treatment to be inserted by sections 4 to 6 above.
Commencement
| 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 | 7 | s145 |
Summary of effect of amendments in Chapter 1 of Part 1
Table from Explanatory Notes, page 9.
| Provision | Currently applies to | Will apply in future to | Learning disability provision to apply in future | "Treatability" test applies now | Appropriate medical treatment test to apply in future |
|---|---|---|---|---|---|
| Civil Patients (Part 2 of the Act) | |||||
| Admission for assessment for up to 28 days (section 2) | Mental disorder | Mental disorder | No | No | No |
| Admission for treatment (s3) | MI, MM, PD, SMM | Mental disorder | Yes | Yes | Yes |
| "Holding power" for patients already in hospital (s5) | Mental disorder | Mental disorder | No | No | No |
| Guardianship (s7) | MI, MM, PD, SMM | Mental disorder | Yes | No | No |
| Patients concerned in criminal proceedings (Part 3 of the Act) | |||||
| Remand to hospital for report (s35) | MI, MM, PD, SMM | Mental disorder | Yes | No | Yes |
| Remand to hospital for treatment (s36) | MI, SMM | Mental disorder | Yes | No | Yes |
| Hospital order (s37) | MI, MM, PD, SMM | Mental disorder | Yes | Yes | Yes |
| Hospital order without conviction (s37(3) and 51(5)) | MI, SMM | Mental disorder | Yes | No | Yes |
| Interim hospital order (s38) | MI, MM, PD, SMM | Mental disorder | Yes | No | Yes |
| Hospital and limitation directions (s45A) | PD | Mental disorder | Yes | Yes | Yes |
| Transfer direction - sentenced prisoner (s47) | MI, MM, PD, SMM | Mental disorder | Yes | Yes | Yes |
| Transfer direction - other (s48) | MI, SMM | Mental disorder | Yes | No | Yes |
Key: MI = mental illness, MM = mental impairment, PD = psychopathic disorder, SMM = severe mental impairment
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- 16- or 17-year-old with capacity cannot be detained on basis of parental consent
- Abnormally aggressive or seriously irresponsible conduct is only a consideration for learning disability (not personality disorder)
- Additional safeguards for ECT introduced in new s58A
- Appropriate treatment test replaces treatability test and applies to all patients under long-term detention
- Approved Mental Health Professional replaces Approved Social Worker
- Automatic reference scheme under s68 changed
- Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005
- Civil partners are treated as if married when determining nearest relative
- Conditionally-discharged hospital direction patients can be absolutely discharged by MHRT
- Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients
- Fundamental principles set out in Act and included in Code of Practice
- Higher penalties for offences under Act
- Hospital direction patients can no longer apply to Tribunal during first six months
- Hospital directions under s45A apply to any mental disorder
- Legal status of Code of Practice set out in Act
- Limitation to the exceptions to the duty to instruct IMCA
- Mental disorder no longer split into separate classifications
- Minor drafting error in MCA 2005 corrected
- New cross-border arrangements for leave and transfer
- New definition of medical treatment
- New Independent Mental Health Advocate scheme
- New procedure for renewal of detention
- New regulations on conflicts of interest
- New requirements for age-appropriate accommodation for children
- NHS Foundation Trusts discharge power problem remedied
- Organisation of Mental Health Review Tribunal changed
- Patient can apply to displace nearest relative, who can now be displaced on grounds of unsuitability
- Patients can be transferred between places of safety under s135 and s136
- Procedure for making of instruments by Welsh Ministers set out
- Reference to Local Health Boards inserted into Act
- Responsible Clinician/Approved Clinician replaces Responsible Medical Officer
- Restriction orders can no longer be time-limited
- SOAD certificate becomes invalid when patient loses or gains capacity
- Some exclusions to definition of mental disorder have been removed
- Supervised Community Treatment replaces Supervised Discharge
- Transitional provisions until full implementation of MHA 2007
- Treatment while under SCT is covered by new Part 4A
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