Territorial Extent Reviews and investigations Chapter 4 – Functions under Mental Health Act 1983 Section 52 and Schedule 3 – Transfer and amendment of functions under Mental Health Act 1983
215.Section 52 and Schedule 3 transfer the functions exercised by MHAC under the Mental Health Act to the Commission in relation to England, and to the Welsh Ministers in relation to Wales. The “regulatory authority” is defined for the purposes of the Mental Health Act as meaning the Commission (in relation to England) or the Welsh Ministers (in relation to Wales): see the amendments made by paragraph 13 of Schedule 3.
216.Section 121 of the Mental Health Act confers certain functions directly on MHAC, including a duty to review certain decisions relating to the withholding of post sent by or to patients detained under the Mental Health Act in high security psychiatric hospitals and a duty to publish a biennial report on its activities. Section 121 also requires that the Secretary of State direct MHAC to exercise certain functions on his behalf. In Wales, this requirement falls on the Welsh Ministers. The functions which the Secretary of State and the Welsh Ministers must direct MHAC to exercise include the appointment of registered medical practitioners to act as second opinion appointed doctors to approve certain forms of treatment under Parts 4 and 4A of the Mental Health Act. They also include functions under section 120 of the Mental Health Act in relation to the general protection of patients subject to the Act, including the duty to keep under review the discharge of certain duties and the exercise of certain powers under the Act (note that the functions conferred by section 120 are themselves amended in some respects by Schedule 3 to this Act – see below.)
217.Subsection (1) of section 52 transfers to the Commission the functions which the Secretary of State must currently direct MHAC to perform in relation to England, as well as two associated functions. Subsection (3) transfers to the Commission the powers conferred directly on MHAC by section 121 of the Mental Health Act. In relation to Wales, those functions are transferred to the Welsh Ministers. Subsection (4) provides that section 121 of the Mental Health Act ceases to have effect, which means (amongst other things) that there is no longer a requirement on the Welsh Ministers to direct MHAC (or anyone else) to exercise any of their functions under the Mental Health Act on their behalf. In practice, the effect is to transfer to the Welsh Ministers the functions which MHAC is currently required to perform on their behalf in Wales. Subsection (2) provides that registered medical practitioners and other people appointed or authorised by the Commission in the exercise of a function under the Mental Health Act may include members or employees of the Commission (just as section 121 of the Mental Health Act currently allows members of MHAC to be appointed).
218.Subsection (5) of section 52 introduces Schedule 3 which makes further amendments to the Mental Health Act. In particular, paragraph 8 of Schedule 3 replaces section 120 of the Mental Health Act. Under subsection (1) of new section 120, the regulatory authority has a responsibility to review the exercise of powers and the discharge of duties in relation to detention, supervised community treatment and guardianship under the Mental Health Act. Under subsection (3) it must make arrangements for authorised people to visit and interview relevant patients. These are equivalent to the functions exercisable by MHAC under the Mental Health Act as it stands now, except that they are extended to cover patients subject to guardianship as well as detention and supervised community treatment. The responsibility under subsection (1) does not extend to monitoring the functions conferred on any court, including the Mental Health Review Tribunal, or the Secretary of State (the performance of the Mental Health Review Tribunal is subject to separate scrutiny). The regulatory authority must undertake an investigation into the exercise of the relevant functions if it thinks it is appropriate to do so. Under subsection (4), it must also make arrangements for the investigation of complaints concerning the exercise of relevant powers and duties under the Mental Health Act, but it is not required to undertake or continue investigation of a complaint if it does not consider it appropriate to do so.
219.Subsection (7) of new section 120 provides that a person authorised by the regulatory authority has a right of entry to hospitals, to care homes registered under the Care Standards Act 2000 and to premises used for carrying out regulated activities in respect of which a person is registered under Part 2 of this Act in order to carry out a review or investigation. The Act does not confer a similar right to enter private homes. However, a patient may consent to be interviewed (in private, where appropriate). Authorised people may also require relevant records or other documents on the premises to be produced for inspection.
220.Paragraph 9 of Schedule 3 inserts sections 120A to 120D into the Mental Health Act. Under section 120A, the regulatory authority is able to publish a report of any review or investigation it undertakes under section 120(1). The Secretary of State and the Welsh Ministers may make regulations about the making of representations before the publication of such a report. This will allow people who are subject to review and investigation an opportunity to respond if they think that there are mitigating factors, errors or other circumstances that might have affected the findings and which they do not think have been adequately taken into account. The Secretary of State will consult the Commission before doing this.
221.New section 120B enables the regulatory authority to require hospital managers, social services departments and other prescribed people to publish a statement of the action they propose to take in response to any recommendations following a review or investigation undertaken under section 120(1). This will provide a public statement about the steps the person or body in question will take to address any concerns that are raised in reports.
222.The Mental Health Act confers powers and duties on a variety of people, including individual professionals and both statutory and independent bodies. For the most part, the people to whom these powers and duties fall are either responsible for hospitals (known as hospital managers in the Mental Health Act) which care for patients subject to the Mental Health Act, or are local social services authorities, or else are individuals working within such hospitals or on behalf of such authorities.
223.However, it is not only hospital managers and social services authorities and their staff who exercise relevant functions under the Mental Health Act and contribute to its operation. There may, therefore, be circumstances in which reviews or investigations make recommendations that are addressed (in whole or in part) to other people. In these cases, it would make sense for the people concerned to be asked directly to publish a report of the action they propose to take as a result. This might include, for example, other NHS bodies that are responsible for providing or commissioning services for patients subject to the Mental Health Act. The regulations can also set out what such statements should contain and how quickly they should be published.
224.New section 120C obliges hospital managers, local social services authorities and other prescribed people to provide the regulatory authority with information, including records and documents, that the authority may require in relation to its functions under section 120. Examples of the kind of information which might be requested are:
	statistical information on people subject to the formal powers under the Mental Health Act, including data relating to particular groups of patients such as children, adolescents, women, and black and ethnic minority patients;
	information on the use of particular powers, such as the granting of leave of absence;
	the number of deaths and other serious incidents;
	information on the use of seclusion in respect of patients.
225.New section 120D requires the Commission to publish an annual report on the way it has exercised its functions under the Mental Health Act, a copy of which must be laid before Parliament. The Welsh Ministers will also have to publish such a report, a copy of which they will have to lay before the National Assembly for Wales.
226.Paragraph 12 of Schedule 3 inserts a new section 134A into the Mental Health Act. Section 134 of that Act provides, in particular, for the withholding of postal packets sent to or by patients detained in high security psychiatric hospitals in specified circumstances. Subsection (1) of the new section 134A provides that the regulatory authority must review any decision to withhold a postal packet or anything contained in it on application by a specified person. These provisions are the equivalent of powers that already exist in section 121 of the Mental Health Act in relation to the review by MHAC of decisions to withhold postal packets under section 134 of that Act.
227.Subsection (5) provides that the Secretary of State may, by regulations, make provision in connection with applications to the Commission and the determination of any such application. This includes provision for the production to the Commission of any postal packet in question. Subsection (6) gives the Welsh Ministers a similar power to make regulations about the making of applications to them.
228.This is, in effect, a restatement of the power to make regulations in subsection (9) of section 121 of the Mental Health Act as it stands now. The provision made under that power is currently to be found in Regulation 18 of the Mental Health (Hospital, Guardianship and Consent to Treatment) Regulations 1983 (SI 1983/893). Regulation 18 provides, in particular, that an application for a review of a decision to withhold a postal packet may be made to MHAC in any form that MHAC accepts as sufficient in the circumstances, and need not be in writing. Applicants must let MHAC have a copy of the notice of withholding provided by the relevant hospital. Regulation 18 also empowers MHAC to direct people to produce any documents, information or other evidence it reasonably requires for its review of the decision. The Government envisages that the powers in subsection (5) of the new section 134A will be used to make similar regulations in relation to the Commission.