Restriction orders can no longer be time-limited
Previously restriction orders made by the Crown Court under s41 could be "either without limit of time or during such period as may be specified in the order". If the patient were in hospital at that date the restriction order would cease and he would be detained as if made subject to a hospital order on that date; if he had been conditionally discharged then on the date he would become absolutely discharged.
From 1/1/07 s40 MHA 2007 removes the ability to make time-limited restriction orders, which was rarely used anyway. No change is made to existing orders.
S40 will amend s41(1) (making restriction orders) and s42(4)(b) (relating to recall), removing references to time-limited restriction orders. It will also amend s44(3) (committal to hospital), s84(2), s81(7), s81A(3) and s91(2) (which all relate to the removal and return of patients within UK) by removing all references to time-limited restriction orders, but these amendments will have no effect in respect of:
- "(a) a restriction order for a specified period made before subsection (1) comes into force, or
- (b) an order made outside England and Wales which is treated under the 1983 Act as if it were a restriction order for a specified period."
Extract from Explanatory Notes
Section 40: Restriction orders
168. Section 40 amends section 41 of the 1983 Act to remove the power of the Crown Court to make restriction orders under section 41 for a limited period. As a result, restriction orders imposed by the Court will remain in force until they are discharged by the Secretary of State for Justice or the MHRT. The section also makes consequential changes to other provisions of the 1983 Act.
Commencement
| Date in force | Commencement order | MHA 2007 section | MHA 1983 sections affected |
|---|---|---|---|
| 1/1/07 | Mental Health Act 2007 (Commencement No. 3) Order 2007 | 40 | s41, s42, s44, s81, s81A, s84, s91 |
| 3/11/08 | Mental Health Act 2007 (Commencement No.7 and Transitional Provisions) Order 2008 | s55, sch 11 | s41, s42, s44, s81, s81A, s84, s91 |
Resources
Mental Health Act 2007 Explanatory Notes - page 31
INFORMATION
- Representation
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- Nearest relative
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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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What links here:
- MHA 1983 s41
- MHA 1983 s42
- MHA 1983 s44
- MHA 1983 s81
- MHA 1983 s84
- MHA 1983 s91
- MHA 1983 s81A
- Mental Health Act 2007 (Commencement No. 3) Order 2007