Independent mental health advocates (IMHAs) are specially trained advocates who can support patients to understand their rights under the 1983 Act and participate in decisions about their care and treatment. They are therefore an important safeguard for patients. The reforms expand the right to access the services provided by an IMHA to informal (voluntary) patients in England. The measures will also ensure that all compulsory qualifying patients will be offered services through automatic referral to an IMHA provider. The intention of the reforms is to improve uptake of IMHA services so that all those who would benefit from advocacy will be able to access services.
	Section 40 and Schedule 3 of the Act make amendments to the 1983 Act regarding IMHAs, which-
provide for informal patients in England to qualify for help from IMHAs;
impose duties on hospital managers and others to notify providers of advocacy services about qualifying patients; and
impose duties on providers of advocacy services to arrange for qualifying patients to be interviewed to find out whether they want to use those services.
	The amendments seek to ensure that decisions are made in the context of each person’s unique needs, even where they may not be able to engage in decisions themselves and in doing so, supports the principle of the person as an individual.
	Sections 130A-D of the 1983 Act cover IMHA provision in England and sections 130E-L cover IMHA provision in Wales (though the Act substitutes section 130D of the 1983 Act with section 130DA – see paragraph 319 below). For Wales, qualifying patients are split into ‘qualifying compulsory’ and ‘qualifying informal’ patients as referred to in section 130F and 130G respectively.
	Section 130C of the 1983 Act currently provides that, in England, IMHA services are only available to compulsory patients who are liable to be detained under the 1983 Act and, those who are subject to guardianship and community patients.
	Patients are also currently eligible to access IMHA services if they are being considered for a treatment to which section 57 of the 1983 Act applies (treatment requiring consent and a second opinion, for example any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue) or if they are under 18 being considered for electro-convulsive therapy or any other treatment to which section 58A applies.
	The amendments introduce the concepts of an "English qualifying compulsory patient" and an "English qualifying informal patient" (referred to collectively as English qualifying patients). These mirror the corresponding concepts for Wales. "English qualifying patients" comprises the cohort of patients to whom IMHA services are already available.
	The measures amend section 130A of the 1983 Act to extend the right to IMHA services to informal patients in England.
	New section 130CA of the 1983 Act (as inserted by paragraph 6 of Schedule 3 to the Act) defines an English qualifying informal patient as an in-patient at a hospital or registered establishment situated in England who is receiving treatment for, or assessment in relation to, mental disorder at the hospital or registered establishment, and is not liable to be detained under the 1983 Act or any other legislation or by virtue of a court order. The Act also amends the current definition in the 1983 Act of a Welsh qualifying informal patients in section 130J to mirror the English definition and to exclude those patients detained under any legislation or by virtue of a court order (rather than just those detained under the Mental Health Act 1983).
	There are some exceptions whereby patients under short term sections are not eligible for IMHA services and no changes to this are made by the Act. These exceptions include those who are subject to sections 4 (admission for assessment in cases of emergency) and 5 (application in respect of patient already in hospital), and sections 135 (warrant to search for and remove patients) and 136 (removal of mentally disordered persons without a warrant).
	New section 130B(2A) 1983 Act (as inserted by schedule 3 to the Act), sets out a non-exhaustive list of the help that must be provided to English informal patients, based on section 130G(1) in respect of Wales. IMHA services for informal patients should provide help in obtaining information about and understanding what (if any) medical treatment is given to the patient or is proposed or discussed in the patient’s case, why it is given, proposed or discussed, and the authority under which it is or would be given.
	The Act also expands the help available to both English informal and compulsory patients to reflect arrangements in Wales, whereby help is also provided to patients to become involved in decisions made about their care or treatment, or to complain about their care or treatment. Patients are to be provided with information about other services which may be available to them.
	New sections 130CB and 130CC concern the introduction of an "opt out" system, facilitated by a set of measures designed to ensure that all qualifying compulsory patients in England have access to IMHA services. This is achieved via a duty on local social services authorities when commissioning IMHA services to ensure that, on becoming aware of a qualifying compulsory patient, providers arrange a visit and determine if the patient wants to use IMHA services or not, and a duty on "the responsible person" (defined as the managers of the hospital or registered establishment, or the local social services authority in relation to patients under guardianship) to provide "required information" about all qualifying patients to the IMHA provider. The "required information" will be prescribed in regulations by the Secretary of State.
	New section 130CB sets out who is the local social services authority responsible for making arrangements under section 130A(1). A local social services authority is responsible for an English qualifying patient if the hospital or registered establishment relevant to the patient is situated in that authority’s area (the relevance to the patient depends on the type of patient or specific section under which the patient is detained – details are set out under section 130CB (1)).
	Arrangements under section 130A must require a provider of advocacy services, on becoming aware of an English qualifying patient for whom they are responsible, to arrange for an IMHA to visit and interview the patient (if possible) with a view to determining whether the patient has the capacity or is competent to take a decision about whether to receive help from an independent mental health advocate, if so, whether the patient wishes to receive such help, and if not, whether it is nonetheless in the patient’s best interests to receive such help.
	Alongside the opt out system, hospital managers are no longer required to provide information about IMHAs to English qualifying compulsory patients (as set out at section 130D). The Act substitutes the current section 130D ‘Duty to give information about independent mental health advocates’ with new section 130DA ‘Duty to give information to English qualifying informal patients’ as informal patients who will not be captured by the opt out system will still need to receive this information.
	The responsible person (i.e. the managers of the hospital or registered establishment to which the patient is admitted as an inpatient) must take such steps as are practicable to ensure that the patient understands that help is available to them from an IMHA and how to obtain that help. These steps must be taken as soon as practicable after the patient becomes an English qualifying informal patient, and this includes giving the requisite information both orally and in writing. The responsible person must also, except where the patient otherwise requests, take such steps as are practicable to give the person (if any) appearing to be the patient’s Nominated Person a copy of any information given to the patient in writing.
Help and information for patients Section 40: Independent mental health advocates