Mental Capacity Act - IMCAs

The Mental Capacity Act 2005 is slightly amended at section 35. Previously it referred to the “appropriate authority” in respect of Independent Mental Capacity Advocates (IMCAs). This was the Secretary of State (SoS). Now the term will be “responsible authority”. In addition, there is to be a new section 35(6A) which provides that the local authority is the responsible authority with regard to the provision of IMCAs.


Schedule A1 to the MCA 2005 is amended again to reflect the abolition of primary care trusts (PCTs) and strategic health authorities (SHAs).

The relevant supervisory body will become a local Authority (LA) and not a PCT with regard to hospitals in England. Hence if the relevant person is ordinarily resident in the area of a LA in England the supervisory body will be that LA. If the relevant person is not ordinarily resident in England and if the National Assembly for Wales or a Local Health Board is commissioning the relevant care or treatment the National Assembly will be the supervisory body. In any other case the supervisory body will be the LA for the area in which the hospital is situated.

Mental Health Act

Buried away in Chapter 1 of the Health Bill – The Health Service in England – are several amendments to the Mental Health Act 1983 (MHA). They are to be found at clauses 30 – 37. Many of them are in accordance with the desire of the SoS to step back and be less directing such that it is proposed that in the following sections any previous involvement he had with the MHA is to be omitted.

  1. s12 (2) and Approved Clinician Approvals – Clause 30

The changes to this process are not yet set in stone. At present, new sections 12 ZA, ZB and ZC are to be added to the Mental Health Act 1983. They will enable the Secretary of State for Health to:

  • agree with another person that they can exercise the approval function concurrently with the SoS; and
  • require the National Commissioning Board (NCB) or a Special Health Authority to exercise the approval function concurrently with the SoS or with another person.

The other person, NCB or Special Health Authority must comply with instructions from the SoS which will be published.

Documents, records and information can be provided between them even if it would otherwise be prohibited by common law.

These new sections will lead to minor amendments to sections 54 (1), 139 (4) and 145 (1) to reflect the new potential approvers.

  1. Discharge of patients – Clause 31

Section 23 MHA deals with the discharge of patients. Sections 23(3) and (3A) currently permit the SoS to order discharge in a couple of situations in the independent sector. It is proposed that they are deleted.

This would have a knock on effect of deleting Sections 24(3) and s24(4) because they only deal with visiting and examination of patients if Section 23 (3) applies. Other references to those sections in Schedule 1 MHA and numerous other pieces of legislation are also to be deleted.

  1. Aftercare – Clause 32

Section 117 is to be amended. The section is also to be expanded with new sections 117 (2D) to 117 (2I). Essentially any references to PCTs will be replaced by references to GP Consortium. They will be under a duty to arrange for the provision of after care services. However the SoS will be able to make regulations to impose the duty on another commissioning consortium or on the NCB.

The explanatory notes to the Bill suggest that this could be used to ensure that the responsible commissioning consortium under s117 was the same one as is responsible for commissioning other health services for the person. This sounds like it has the potential for the position on aftercare to be very unclear. Given the problems that the section already creates in terms of working out where the duty might lay this sound ominous.

However there is allegedly more certainty around the ending of s117 aftercare. What is proposed is that the duty on the consortia or the duty on the LA to secure after care ends when the consortia (or the LA) alone decide that aftercare is no longer required. Hence this proposes a change to the current arrangements where both the LA and PCT have to agree that the person concerned no longer needs such services.

Another change is that there will no longer be a duty to arrange after care “in co operation with relevant voluntary agencies”.

Clarity is to be provided by a new Clause 117 (2E) to make it clear that the after care services for which commissioning consortia would be responsible are health (rather than social) services.

The explanatory notes then end by reminding us that the Law Commission is reviewing adult social services legislation generally and their recent consultation document invited comments on possible changes to s117!

  1. Pocket Money for In Patients – Clause 33

This section enabled a patient to receive pocket money from the SoS if they were without other resources. As this power was delegated to PCTs it is proposed that this section will be amended to leave only a power for Welsh Ministers to pay pocket money in relation to Wales (of course).

  1. Transfers to and from special hospitals – Clause 34

Section 123 provides for the SoS to make directions for the transfer of high secure patients. The section is to be deleted in its entirety. This has a knock on effect on a couple of other sections that refer to section 123.

  1. Independent Mental Health Advocates – Clause 35

Section 130A was a new addition to the MHA in November 2008. It placed a duty on the SoS to make arrangements for IMHAs to be available.

It is proposed that this is placed on local social services authorities instead. New sections 130C (4A) and (4B) are proposed.

  1. Patient’s correspondence – Clause 36

Section 134 permitted the withholding of outgoing post if a request had been made by any person to the SoS, an approved clinician or the Hospital Managers indicating that they did not want to receive communications from the patient. It is proposed that the SoS will no longer be involved in this.

  1. Notification of hospitals having arrangements for special cases – Clause 37

Section 140 required PCTs to notify the LA about arrangements in respect of urgent cases or the provision of accommodation suitable for children with a mental disorder. It is proposed that the duty is placed on the commissioning consortium instead.

  1. Approved Mental Health Professionals (AMHPs) – Clause 201

Essentially the Health and Care Professions Council in England are to be able to approve courses for AMHPs in place of the General Social Care Council.

It is proposed that there is a new section 114 ZA inserted into the MHA to reflect this.

There are then knock on amendments proposed to the Health and Social Work Professions Order 2001 and a few other statutes.

  1. Supervised Community Treatment – Clause 273

A new section 64C (4A) is proposed. Effectively this would mean that if an Approved Clinician (AC) has certified that a patient has capacity to consent to treatment and has consented then there is no need for a SOAD to be involved too.

It is important to note that:

  • this new rule will not apply to electro-convulsive therapy for under 18s;
  • if a patient loses capacity the AC’s certificate will no longer be valid; and
  • in the above scenario treatment can continue whilst a second opinion appointed doctor certificate is sought if the AC thinks that to stop would cause serious suffering.
  1. Other sections

In addition at Schedule 5 of the Bill (page 262) there is listed all the other amendments proposed to the MHA. These are to reflect the abolition of PCTs and SHAs. The amendments would be to sections 19, 23,32,39, 134,139 and 145 (where both the NCB and commissioning consortium are given roles instead.)

The Department of Health wrote to the Mental Health Alliance on 19 January 2011 summarising the changes.