Following amendments to the Mental Health Act 1983 made by the Mental Health Act 2007 four new regulations and two orders have been drafted by the Secretary of State for Health and are due to come into force on 3 November 2008.

The Mental Health (Hospital, Guardianship and Treatment)(England) Regulations 2008 Amongst other things, these regulations set out:

  • how and when hospital managers and local social services authorities may delegate their functions under the relevant parts of the Act;
  • the statutory forms to be used to make particular applications, recommendations and records under the Act, including applications to have people detained in hospital and the making, variation and revocation of community treatment orders;
  • the procedure to be followed to transfer patients between one hospital and another; the way in which patients’ nearest relatives may delegate various rights they have under the Act in connection with patients; and
  • the duties, in addition to those in the Act itself, on hospital managers and local social services authorities to give information to patients and their nearest relatives.
  • The regulations also deal with certain aspects of the special rules and procedures in Parts 4
  • and 4A of the 1983 Act about particular forms of treatment for mental disorder.

The Mental Health (Mutual Recognition) Regulations 2008

These regulations are to allow practitioners approved as section 12 doctors and persons approved to act as approved clinicians the flexibility to carry out their functions under the 1983 Act in both England and Wales in specified circumstances.

This is because the criteria for approval may not necessarily be the same in England and Wales so a person approved in one is not automatically approved in the other.

These will therefore be important in border areas where it would otherwise be disruptive to patient care.

The Mental Health (Conflicts of Interest) (England) Regulations 2008

These regulations set out the circumstances in which there would be a potential conflict of interest which would prevent an Approved Mental Health Professional (AMHP) making an application or doctor making a recommendation under Part 2 of the Act. If specified personal relationships exist between the AMHP or doctors, to each other, to the patient or to the nearest relative, then there is a potential conflict of interest. There will also be a potential conflict of interest for financial, business or professional reasons.

However, where there is an emergency the regulations set out when despite a potential conflict of interest, an AMHP or doctor may still participate in an assessment. Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008 These regulations deal with the approval of people to be AMHPs and the factors that are to be taken into account including the professions from which AMHPs should be drawn and the competencies they should demonstrate.

AMPHs will be drawn from:

  • social workers;
  • first level nurses ;
  • occupational therapists; and
  • chartered psychologists.

Training is to be regulated through the General Social Care Council.

The Mental Health (Nurses) (England) Order 2008

If you are a nurse whose entry in the register (maintained by the Nursing and Midwifery Council) includes mental health nursing or learning disabilities nursing then you will be empowered under section 5(4) Mental Health Act 1983 to detain, for up to six hours as a hospital in-patient, a patient in a mental hospital who is receiving treatment for mental health disorder.

Mental Health Act 2007 (Commencement No. 6 and aftercare under supervision: savings, modifications and transitional provisions) Order 2008

The provisions for supervised community treatment also come in to force on 3 November 2008 and the provisions for aftercare under supervision will be replaced. This order establishes a six-month transitional period, to end 3 May 2009, during which the old regulations will continue to be in force and the responsible medical officer must decide the best option for future care and treatment of any patient affected. The decision must be made when the current period of aftercare under supervision expires or, if that was due to end after 3 May 2009 then it must be reviewed by 3 May 2009 at the latest.

It is expected that this will impact only a very small number of patients.