COMMISSION’S FUNCTIONSHaving regard to English and international constitutional standards, the followingfunctions ought to...
VISITING OF HOSPITALS    Whenever reasonably requested by a person or body specified                         in regulation...
OFFENCES              (ill-treatment, neglect, etc)                      The present system involves the Commission invest...
INTERVIEWS AND ACCESS   Unlimited access to patients’ notes and statutory documents.                        Power to inter...
CONCLUSIONS 1. The retention of a specialist Mental Health Commission is the most effective and efficient way of protectin...
The most suitable arrangement may be for a new Commission to report directlyto Parliament. Failing this, it should be a no...
practitioners to be instructed to undertake one-off projects or cases should bepossible.Because the new Commission will fo...
COMMISSION MEMBERSHIP OF 42 (CHAIRMAN + CHIEF EXECUTIVE + 40 FULL-TIME MEMBERS) = MEMBERS’ BUDGET OF £2,489,000           ...
ST RU C T U RE OF T HE ME N T AL HE AL TH L AW C OM MIS SI ON                                                       MA N A...
Each commissioner would be responsible for around 1100 incapacitated patientsand 325 detained patients at any given time; ...
(a) between 30 and 45 full-time commissioners, of whom at least 12 shall be women, at least 12 solicitors or barristers (i...
Commission Management Board2.—(1) Within three months of the day on which all of the remaining Commissioners havebeen appo...
(a) Five solicitors or barristers appointed by the Secretary of State as having special expertise and experience in the fi...
(iii) the implementation of any international legal standards or principles prescribed   by regulations.(b) to scrutinise ...
(2) The duties imposed by paragraphs (h) and (i) of subsection (1) shall be exercised only bya Commissioner who is a solic...
transferred to another hospital or granted leave of absence, it shall recommend accordinglyto the Secretary of State.(8) F...
(3) The statement of accounts prepared under paragraph (1)(b) together with the report ofthe auditors thereon shall be sen...
under this section shall be sent to the Mental Health Commission at the end of everyquarter.(5) In this section—‘solitary ...
Mental health commission functions
Mental health commission functions
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Mental health commission functions

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Mental health commission functions

  1. 1. COMMISSION’S FUNCTIONSHaving regard to English and international constitutional standards, the followingfunctions ought to be performed by a Mental Health Commission: LEGAL STANDARDS & FUNCTIONS OF A SPECIALIST COMMISSIONKEEP THE OPERATION OF To keep under review the exercise of the powers and dutiesTHE LAW UNDER REVIEW exercisable under the Mental Health Act, the implementation of the Human Rights Act 1998 in respect of incapacitated patients and patients subject or liable to compulsion, and the implementation of any international legal standards or principles prescribed by regulations. Wherever possible, the Mental Health Act must now be applied in a manner consistent with Convention rights, so that the two documents cannot be separated. The Minister is given a discretion to set internationally agreed standards without the need for primary legislation.LEGALITY OF COMPULSION To scrutinise all statutory documents completed by or under the Act that are received by the Commission, to advise those furnishing them of any irregularities, and to correct or amend them where appropriate and in whatever way is deemed appropriate. This minimises the need for, and distress of, expensive judicial proceedings. It duplicates the power currently possessed by the Mental Welfare Commission for Scotland, and possessed by the Board of Control prior to 1959. A Commission can only monitor the Act, and in particular the use of powers in the community, if it is notified when compulsory powers and changes in the patient’s status. Having been notified that a person is subject to compulsion, the Commission would write to the patient, with an information leaflet, following up with contact by telephone.VISITING OF PATIENTS Unless the patient objects, whenever requested by a person or body specified in regulations, to review the care and treatment of an incapacitated patient or a patient subject to compulsion under the Act. Such regulations to designate the following persons and bodies: the patient; a carer; the Secretary of State; the National Institute for Mental Health in England; the National Patient Safety Agency; an NHS body; a local authority overview and scrutiny committee; the Health Service Commissioner, Parliamentary Commissioner, or Local Authority Commissioner; a Patients Forum; the Commission for Patient and Public Involvement in Health; the Commission for Health Improvement; the National Care Standards Commission; certain voluntary agencies (MIND, the NSF, SANE).whenever requested by a patient, a carer or by a person or body specified in regulations, to visit any incapacitated patient or any patient subject to compulsion under the Act. The Commission will focus on individuals. 1
  2. 2. VISITING OF HOSPITALS Whenever reasonably requested by a person or body specified in regulations, to review the way in which the Mental Health Act is being applied in respect of incapacitated patients or patients subject to compulsion under it by any person, group of persons, establishment or body. Such regulations to designate the following persons and bodies: the patient; a carer; the Secretary of State; the National Institute for Mental Health in England; the National Patient Safety Agency; an NHS body; a local authority overview and scrutiny committee; the Health Service Commissioner, Parliamentary Commissioner, or Local Authority Commissioner; a Patients Forum; the Commission for Patient and Public Involvement in Health; the Commission for Health Improvement; the National Care Standards Commission; certain voluntary agencies (MIND, the NSF, SANE). The Commission will focus on individuals. There will no longer automatically be periodic visiting of every hospital or community provision. Any local reviews will be in response to identified need. These reviews could include the way in which crisis teams and the police are using their powers in patients’ homes or other community settings.ILL-TREATMENT, NEGLECT To review any case where it appears there may be ill- treatment, neglect in care or treatment, or the improper detention, compulsion or supervision of any person who may be suffering from mental disorder; and, where appropriate, to undertake or order their independent investigation. An international standard, and a power possessed by the other United Kingdom Commissions. Where the Commission is told that a patient is not being properly cared for or supervised in the community, it can investigate. It can give directions for remedying the deficits if the patient or other persons are at risk of harm.PATIENT DEATHS, HARM To review the circumstances surrounding the death or physicalTO PATIENTS harm of any person of persons subject to compulsion; and, where appropriate, to undertake or order their independent investigation. An international standard, and an obligation of the state under Article 2 of the European Convention. The public interest requires that the public know — and public services perform no public service when they manage what the public know.USE OF SOLITARY To review, and where deemed appropriate to order theCONFINEMENT OR termination of, any use of solitary confinement (seclusion) andRESTRAINT mechanical restraint. An important power, previously possessed by the Board of Control. There are patients who have been secluded for as long as 17 years.RESTRICTIONS ON RIGHT To review, and where deemed appropriate to order theTO COMMUNICATE termination of, any restrictions placed on patients’ rights to communicate with others. A requirement of the European Convention.PROSECUTION OF To investigate and prosecute offences under Part IX of the Act 2
  3. 3. OFFENCES (ill-treatment, neglect, etc) The present system involves the Commission investigating possible offences and local authorities prosecuting them, and is understood by neither. This restores the pre-1959 position.CODE OF PRACTICE To publish a code of practice on the Act.ANNUAL REPORT To publish an annual report.SAVING PROVISION To perform such other functions in relation to mentally disordered persons as may be prescribed by regulations. Possible functionsRELEASE OF THOSE At their discretion, to order the release of any unrestrictedSUBJECT TO UNLAWFUL patient who is unlawfully detained (power exercisable only byCOMPULSION a legal member). This provision minimises the need for, and distress of, expensive judicial proceedings. It duplicates the power currently possessed by the Mental Welfare Commission for Scotland, and possessed by the Board of Control prior to 1959.APPEALS To determine any matters or points of law concerning statutory powers and duties referred to it by mental health tribunals or prescribed bodies (health service bodies, social services authorities, registered independent providers of certain descriptions). It is safe to assume that a significant number of tribunal orders will be materially irregular during the first few years after the new Act comes into force. This provision minimises the need for, and distress of, expensive judicial proceedings.ADVISORY Duty to advise the Secretary of State, a health service body or a local authority on any matter arising out of or under the relevant mental health statute. The Commission could advise service providers on legal issues. This is a valuable service, which is likely to be welcomed. Non-statutory functionsTRAINING Power to provide training on matters within its remit, and to charge for such training.PUBLICATIONS Power to charge for publications PowersGENERAL POWERS As for CHI, but appointments, reappointments, and powers of inquiry and investigation not subject to Ministerial control. 3
  4. 4. INTERVIEWS AND ACCESS Unlimited access to patients’ notes and statutory documents. Power to interview and examine any patient in private.DIRECTIONS Duty on service providers to take steps in accordance with advice given by the Commission, to notify it of the steps taken, and to comply with the requirements of notices served by it. FUNCTIONS OF OTHER COMMISSIONS & PUBLIC BODIESQUALITY COMMISSIONS To review, and where appropriate investigate, the suitability(CHI AND THE NATIONAL and quality of premises used for providing health or social careCARE STANDARDS to persons suffering from mental disorder.COMMISSION) To review, and where appropriate investigate, the general quality of health and social care services provided to persons suffering from mental disorder. Duty of joint working. For example, CHI members may participate in reviews or investigations undertaken by the Mental Health Law Commission, and vice-versa. If requested to do so by the Mental Health Law Commission, the CHI and the National Care Standards Commission shall investigate the suitability and quality of premises used for, or services provided to, persons suffering from mental disorder. Statutory duty on the Mental Health Law Commission to report to CHI and the National Care Standards Commission any concerns about the quality of mental health premises or services.COURT OF PROTECTION To exercise protective functions in respect of mentally disordered persons who may be incapable of adequately protecting their persons or their interests. Duty to inquire into any case where it appears that the property of a person who may be suffering from mental disorder may be exposed to loss or damage, by reason of that mental disorder.CONCLUSIONThe existence of a specialist commission is the most effective way of ensuring thestatutory powers are not abused. Such protections need to be strengthened, notdiluted. The wicked are wicked, no doubt, and they go astray and they fall, andthey come by their deserts; but who can tell the mischief which the very virtuousdo?1 4
  5. 5. CONCLUSIONS 1. The retention of a specialist Mental Health Commission is the most effective and efficient way of protecting the rights and integrity of persons who by reason of mental disorder are subject to compulsion or incapacitated.A NEW COMMISSIONFor those who accept the need for a specialist Mental Health Commission, theissue becomes what form it should take, and what particular functions it shouldperform. These matters are dealt with under the following headings: Name Funding Constitution Ethos Functions Supervision MembershipNameThere is a case for disestablishing the Mental Health Act Commission and startingagain, so that the new arrangements are not undermined at the outset by anynegative perceptions of the existing commission. The MHAC would briefly co-existwith the new Commission, during which time it would complete complaintsinvestigations and other work in progress. The new Commission would be‘baggage-free.’The name of the Commission should reflect the fact that it is concerned with legalstandards, rather than quality standards. The enactment of the Human Rights Act1998, and the need to deal with seclusion, ill-treatment, and so forth, means thatits remit would be slightly broader than simply policing the new Act. Hence,retaining the existing name would be misleading in any case.A name such as the ‘Mental Health Law Commission’ may be suitable.ConstitutionThe critical constitutional issue is the extent to which any new commission will beindependent of central government. The protection of individuals’ legal rights is aconstitutional matter, and ought not to be subject to political considerations orpressures.Many people believe that the commission’s performance has been affected bytight political control, characterised by the appointment of a former Home Officecivil servant as its chairperson at a time when the Act is being reviewed. Therehas sometimes been a fear among members that constructive, sensible, criticismthat is evidence-based may lead to non-reappointment.The Commission’s performance has been undermined in more general ways by itsstatus as a special health authority. This has rendered it subject to paper-heavyprocedures devised for health service bodies, a class to which it belongs in nameonly. 5
  6. 6. The most suitable arrangement may be for a new Commission to report directlyto Parliament. Failing this, it should be a non-departmental public body, with alarge measure of self-governance and independence guaranteed by regulations.Provided it is independent, success depends more on the skill and competence ofits members and officers than on the formal structure.FunctionsThe functions that the Commission would perform have already been described.In essence, a new Mental Health Law Commission would be concerned with legalstandards, and bodies such as CHI and the National Care Standards Commissionwould focus on service quality.MembershipThere is a lack of evidence that the many reorganisations of NHS structures since1973 have been effective in terms of improving performance at the point ofdelivery.The Mental Health Act Commission’s administration has also been reorganisedmany times and, here also, there is no clear evidence that the reforms werejustified by improved outcomes.That structural reforms have had little positive impact is not surprising if it is truethat people make systems work, systems don’t make people work (the ‘Marxistfallacy’). Structures can be radically changed and still have no impact on what isdelivered to patients.Given that health care is delivered differently around the world, common sensesuggests that many systems can work, if they are adequately resourced, andthose providing the services are properly trained, competent and professional.There is no one right way to care for patients or run a hospital.According to this view, in any professional undertaking requiring the exercise ofexpertise and judgement, the key is recruiting the best, and then trusting andutilising their professional expertise and judgement. Service failure is most oftendue to under-funding at several levels. It starts at school, and finishes with afailure to recruit or train the best, and bureaucratic structures to manage staffwho cannot be relied on to work independently.If this is correct, the success or failure of a new Commission will turn mainly onits membership and, more particularly, recruitment.The existing commission has been under-funded, with the consequence that ratesof pay are low, it has been impossible to recruit or engage leading experts, andthe part-time membership has ended up being enlarged, and to some extentcasualised, in order to increase output. This has led to diminished professionalstanding and a failure to adhere to the statutory remit. The members concentrateand comment on those matters they feel confident to express an opinion on, andlay and social care members tend to concentrate and comment on lay and socialcare issues. It is probably impossible, in any case, properly to co-ordinate theefforts of 150 part-time Commissioners across a geographical area as large asEngland and Wales.The remedy appears to be an expert, specialist commission, mainly staffed byfull-time practitioners. Members’ posts should be senior appointments, requiringexceptional personal qualities, and strong oral, written and analytical skills.Salaries should be set at a level that is attractive to leading members of therelevant professions. Having said that, the overriding aim must be to attract thebest. Where necessary, short-term secondments, the employment of expertpractitioners on a part-time basis, and flexible arrangements that allow individual 6
  7. 7. practitioners to be instructed to undertake one-off projects or cases should bepossible.Because the new Commission will focus on legal standards — and, of course, theMental Health Act Commission itself should be concentrating on Mental Health Actpowers and duties, and not function as a National Health Service Commission —the composition of its membership should reflect this remit.Furthermore, if it is to be an expert body, it is not practical or desirable to have anon-professional management board. One cannot have those with expertise beingled and instructed by non-experts, as is presently the case.Likewise, it is not practical or desirable for the Commission to have a lay chair,any more than it is for advisory non-departmental public bodies to have one. Themembers, and those seeking the commission’s advice, must respect the authorityand competency of the leadership to speak on legal matters within the MentalHealth Law Commission’s remit.Further still, it is inappropriate to appoint a person with a non-service backgroundto the Chief Executive position. That position ought to be filled by a mental healthservices manager with a relevant professional background (nursing, medicine,etc). Here too, the Chief Executive must have the respect of the members.Having regard to these considerations, the suggestion is that: The chairperson should be a solicitor or barrister, because the Commission’s remit is the monitoring and enforcing of legal standards. The commission’s performance should be scrutinised by an overview and scrutiny committee that reports to the Secretary of State. The management board should consist of the Commissioners who hold executive positions (chairperson, chief executive, medical director, legal director; nursing director, social care director, finance director); an equal number of commissioners who do not hold executive positions; employed officers of the Commission; and the chairperson of the overview and scrutiny committee. Representatives of the management board should meet quarterly with the overview and scrutiny committee, whose members should have full access to Commission documents, and be able to attend meetings and patient visits. The Chief Executive should have managerial experience in mental health services and a relevant professional background. The Commission’s executive officers (who would include legal executives) should manage caseloads.FundingA rough estimate of some of the costs involved in adopting this model is set outin the spreadsheet below. A £2.5m budget would allow for 42 ‘whole-timeequivalent’ members, organised into four regional teams: 7
  8. 8. COMMISSION MEMBERSHIP OF 42 (CHAIRMAN + CHIEF EXECUTIVE + 40 FULL-TIME MEMBERS) = MEMBERS’ BUDGET OF £2,489,000 FULL-TIME CHAIRMAN £90,000 + FULL-TIME CHIEF EXECUTIVE £90,000 = £180,000 TEAM A (10) TEAM B (10) TEAM C (10) TEAM D (10) Includes High Security Hospital Includes High Security Hospital Includes High Security Hospital No High Security Hospital MEDICAL COMMISSIONERS (12 + Incapacity second opinions) = Medical budget of £936,000MEDICAL DIRECTOR £90,000 Consultant Forensic Psychiatrist £70,000 Consultant Forensic Psychiatrist £70,000 Consultant Psychiatrist £70,000Consultant Psychiatrist £70,000 Consultant Psychiatrist £70,000 Consultant Psychiatrist £70,000 Consultant Psychiatrist £70,000Specialist Registrar £44,000 Specialist Registrar £44,000 Specialist Registrar £44,000 Specialist Registrar £44,000Incapacity budget £45,000 Incapacity budget £45,000 Incapacity budget £45,000 Incapacity budget £45,000Budget £249,000 £229,000 £229,000 £229,000 LEGAL COMMISSIONERS (12) = Legal Budget of £597,000Senior Legal Officer £55,000 Senior Legal Officer £55,000 LEGAL DIRECTOR £80,000 Senior Legal Officer £55,000Commissioner £44,000 Commissioner £44,000 Commissioner £44,000 Commissioner £44,000Commissioner £44,000 Commissioner £44,000 Commissioner £44,000 Commissioner £44,000Budget £143,000 £143,000 £168,000 £143,000 OTHER TEAM MEMBERS (16) (4 Nurses, 4 Social workers, 4 Psychologists, 4 x OTHER Specialists) = Budget of £776,000Nurse £44,000 Nurse £44,000 Nurse £44,000 NURSING DIRECTOR £80,000Social worker £44,000 SOCIAL CARE DIRECTOR £80,000 Social worker £44,000 Social worker £44,000Psychologist £44,000 Psychologist £44,000 Psychologist £44,000 Psychologist £44,000Specialist £44,000 Specialist £44,000 Specialist £44,000 Specialist £44,000Budget £176,000 £212,000 £176,000 £212,000 1
  9. 9. ST RU C T U RE OF T HE ME N T AL HE AL TH L AW C OM MIS SI ON MA N A GE M E N T B OA R D (1 6 ) DEPAR TMENT Chairman (lawye r) OF HEALTH Chie f Exe cutive Le gal Dire ctor Me dical Dire ctor Social Se rvice s Dire ctor Nurs ing Dire ctor Ove rvie w & Finance Dire ctor S crutiny Co mmitt ee Chairpe rs on of the Ove rvie w & S crutiny Co mmitt ee Six me mbe rs e le cte d by the Co mmiss ione rs Two me mbe rs e le cte d by the office rs CHIEF EXECUTIVES O F ICE F (Execution of the management boards decis ions ) Finan ce Di rector Statis tician Chief IT Offi cer Human Res ou rces Offi cer REGI ON 1 ( 10 me mbe rs ) REGI ON 2 ( 10 me mbe rs ) M ED I CA L D I RE CT O R SO CI A L W O RK D I RE CT O R 3 L e ga l m e m be r s 3 L e ga l m e m be r s 2 o t h e r P sy c h i a t r i st s 3 P sy c h i a t r i st s N ur se N ur se So c ia l wo r k e r P sy ch o lo gist P sy ch o lo gist Spe c ial ist (e . g. p r o ba t io n of f ic er ) Spe c ial ist (e . g. oc c up a t io n a l t h e r a p ist ) REGI ON 1 ( 10 me mbe rs ) REGI ON 1 ( 10 me mbe rs ) L E GA LD I RE CT O R N U RSI N G D I RE CT O R 2 o t h e r le ga l m e m be r s 3 L e ga l m e m be r s 3 P sy c h i a t r i st s 3 P sy c h i a t r i st s N ur se So c ia l wo r k e r So c ia l wo r k e r P sy ch o lo gist P sy ch o lo gist Spe c ial ist (e . g a c a de m ic ) . Spe c ial ist (e . g. se n io r p o l ic e of f ic er )On top of this budget of £2.5m, the Commission would need an additional sum toremunerate overview and scrutiny committee members; to employ a number oflegal executives for each team; and to engage non-members on a case-by-casebasis (this will be desirable where geographical remoteness, speed of response,or the need for some special skill make it necessary to go outside theCommission).According to the MHAC’s Eighth Biennial Report, the Commission spent £765,000on Commission members’ fees and £711,000 on second opinion medical fees,totalling just under £1.5 million. There were around 15,000 requests for secondopinions (about 40 per day at an average cost per opinion of £47.40).The model suggested here allows for 42 ‘whole-time equivalent’ membersorganised into four regional teams. This allows for up to 37,000 annual patientcontacts; 7410 Commissioner hospital visiting days; and 1755 otherCommissioner days (inquests, conferences, research, briefings, practice notes,website maintenance, responses to Government papers, corporate work, etc). 201
  10. 10. Each commissioner would be responsible for around 1100 incapacitated patientsand 325 detained patients at any given time; and an incalculable number ofpersons subject to new community powers.EthosThe Commission would aim to establish a reputation for competence,independence and thoroughness of case review.The Commission would adopt a collegial approach to its work, with a high level ofinteraction between members and staff in support of each other. Members andstaff would work on cases electronically. The Commission’s IT systems wouldprovide electronic access to reference materials and case documentation, whichcould be reviewed using data-mining facilities and other specific IT caseworktools.Commission members would have four key roles: advising and mentoring casereview managers in the review of individual cases; undertaking casework;deciding the final outcome of cases; fulfilling certain corporate responsibilities.Members would assist the management board in developing the strategicdirection of the Commission, and ensuring that it fulfils its duties within thestatutory framework, available resources, and the limits of its authority.Members would be expected to abide by a written code of conduct.SupervisionThe new Commission should be accountable to the Audit Commission in the areaof financial management and value for money. In terms of its statutory remit, itwould be scrutinised by the overview and scrutiny committee made up ofindependent experts and representatives of services, patients and carers. CONCLUSIONS 2. The Mental Health Act Commission should be disestablished, and replaced by a Mental Health Law Commission.DRAFTING AND DETAILThe following is a draft of how the main relevant sections of a new Act might lookif based on the above model.Mental Health Law Commission1.—(1) There shall be established a body to be called the Mental Health Law Commission (inthis Act referred to as ‘the Commission’).(2) The Commission shall be a body corporate and shall have a common seal.(3) The Commission shall exercise— (a) the functions conferred on it by this Act; and (b) such other functions relating to or connected with the law relating to persons suffering from mental disorder as the Secretary of State may by order prescribe.(4) The Commission shall consist of: 202
  11. 11. (a) between 30 and 45 full-time commissioners, of whom at least 12 shall be women, at least 12 solicitors or barristers (in this Act referred to as ‘legal commissioners’) and at least 12 registered medical practitioners (in this Act referred to as ‘medical commissioners’); (b) any Honorary Commissioners appointed under subsection (12); and (c) up to 20 other Commissioners.(5) No person who for the time being is employed in the civil service of the Crown or who isa member of a mental health tribunal shall be appointed to the Commission.(6) The Secretary of State shall appoint for the Commission a chairman (who shall be asolicitor or barrister), legal director, medical director, social care director, and nursingdirector.(7) The persons so appointed shall thereupon become the first members of the Commissionand together form an interim management board, holding their respective offices for aperiod of six years commencing from the day on which the Commission becomesoperational.(8) The remaining Commissioners, who shall include a Chief Executive and a financedirector, shall be appointed by the interim management board, and shall hold office for aperiod of five years commencing from the day on which the Commission becomesoperational.(9) Following the appointment of a Chief Executive and a finance director, the Commissionshall at all times have a Chairman (who shall be a solicitor or barrister); a Chief Executive;a legal director; a medical director; a social care director; a nursing director; and a financedirector.(10) When deciding who to appoint as Commissioners, the Secretary of State, the interimmanagement board and the Commission Management Board shall have regard only to theachievements and standing of candidates in their respective professions; their integrity;their personal qualities; their oral, written and analytical skills; their competency; theirknowledge and understanding of mental health law; and their ability to discharge theCommission’s functions without supervision.(11) When deciding who to appoint as Commissioners, the Secretary of State, the interimmanagement board and the Commission Management Board shall not have any regard to themere fact that a candidate has held a particular post or position in the past.(12) The Chairman may invite any person who he believes has a record of outstandingachievement in his professional field to apply for appointment as an Honorary Commissionerand may personally recommend their appointment to the interim management board or theCommission Management Board.(13) Honorary Commissioners shall not be under any obligation to discharge any of theCommission’s functions but may do so by agreement with the Chairman, the ChiefExecutive or the Commission Management Board.(14) During any Commissioner’s term of office, tenure of office may only be terminated onthe ground of incompetence or gross misconduct.(15) The Commission may pay to commissioners such remuneration, and arrange or providefor the payment of such pensions, allowances or gratuities to or for them, as it considersappropriate; and different provision may be made for different cases or different classes ofcase.(16) Schedule 1 shall have effect in relation to the Commission. 203
  12. 12. Commission Management Board2.—(1) Within three months of the day on which all of the remaining Commissioners havebeen appointed in accordance with section 1, a permanent Management Board (referred toin this Act as the ‘Commission Management Board’) shall be established by the interimmanagement board.(2) The Management Board shall consist of: (a) The Chairman (who shall chair the board); (b) The Commission’s six executive officers, being its legal director, medical director, social care director, nursing director, finance director, and Chief Executive. (c) Six other commissioners appointed by the Overview and Scrutiny Committee. (d) Two employees of the Commission who are not also Commissioners, appointed by the Overview and Scrutiny Committee. (e) The chairman of the Overview and Scrutiny Committee(3) The Commission Management Board shall: (a) appoint all subsequent chairmen, chief executives, legal directors, medical directors, social care directors, nursing directors and finance directors; (b) appoint all subsequent Commissioners; (c) take all decisions as to whether to terminate a Commissioner’s term of office on the grounds of incompetence or gross misconduct; (d) perform such other functions as may be prescribed by regulations; (e) conduct its business in accordance with standing orders prescribed by regulations.(4) The Commission Management Board may arrange for the discharge of any of theirfunctions by the Chief Executive or by a member or employee of the Commission, but notby a committee or sub-committee otherwise that when making appointments.Functions of the Chief Executive3.—(1) The Chief Executive of the Commission shall seek to ensure the implementation ofdecisions made by the interim management board, the Commission Management Board, andby persons authorised to make decisions on their behalf.(2) The Chief Executive shall seek to ensure that the Commission’s business is conductedwith the minimum amount of regulation and that providers of legal, health and social careservices are not subject to unnecessary regulation.(3) The Chief Executive shall seek to promote within the Commission standards ofprofessional competence, transparency of process and decision-making, objectivity,integrity, openness and independence of action.(4) The Chief Executive shall seek to ensure that employees of the Commission are welltreated and within resources that they receive those periodic rewards for good work,perquisites and other gestures of recognition that an employee of a non-public body ofequivalent size and resources might reasonably expect to receive.(5) The Chief Executive may arrange for the discharge of any of his functions by a memberor employee of the Commission, but not by a committee or sub-committee.Overview and Scrutiny Committee4.—(1) Within one month of the day on which all of the remaining Commissioners have beenappointed in accordance with the foregoing section, an Overview and Scrutiny Committeeshall be established by the interim management board.(2) The Overview and Scrutiny Committee shall consist of: 204
  13. 13. (a) Five solicitors or barristers appointed by the Secretary of State as having special expertise and experience in the field of mental health law or human rights. (b) Five persons who are medical practitioners, nurses or social workers, appointed by the Secretary of State as having special expertise and experience in the provision of mental health care to persons suffering from mental disorder. (c) Five persons appointed by the Secretary of State, to represent respectively the interests of patients, carers, the public, and providers of health and social care.(3) The Overview and Scrutiny Committee shall: (a) appoint certain members of the Commission Management Board, as provided for by paragraphs 2(2)(c) and (d) above, which includes making appointments filling any vacancies; (b) scrutinise the way in which the Commission performs its statutory functions, seeking at all times to ensure that it performs them with a minimum amount of regulation; (c) seek at all times to assist the Commission in the way in which it performs its functions and to adopt a constructive role. (d) prepare a biennial report on the Commission’s performance of its statutory functions, which shall be published by the Commission as an appendix to its biennial report.(4) Members of the Overview and Scrutiny Committee may inspect and copy anydocumentation held by Commissioners that relates to the performance of their functions.(5) The Overview and Scrutiny Committee may arrange for the discharge of any of itsfunctions by a member of the committee, but not by a sub-committee.(6) Members of the Overview and Scrutiny Committee shall hold office for such periods andsubject to such terms and conditions as the Secretary of State may determine, andvacancies on the committee shall be filled by him.Employees and other appointments5.—(1) The Chief Executive shall employ a statistician and a person who shall be responsiblefor information technology and the processing of electronic information.(2) The Chief Executive may appoint such other employees as he considers appropriate onsuch terms and conditions as he determines, and such determinations may make differentprovision for different cases or different classes of case.(3) The Commission Management Board (and any person authorized by it, including theChief Executive) may arrange for such persons as it thinks fit to assist the Commission inthe discharge of any of its functions, and any persons so authorized shall be regarded as aCommissioner and have the same powers and duties as a Commissioner when performingthe functions they are authorized to perform.(4) Arrangements made under the preceding subsection may provide for the payment ofremuneration and allowances to such persons.(5) The Secretary of State may provide for the Commission such officers and servants andsuch accommodation as it may require.Functions of the Commission6.—(1) It shall be the duty of the Commission— (a) to keep under review: (i) the exercise of the powers and duties exercisable under the Mental Health Act; (ii) the implementation of the Human Rights Act 1998 in respect of incapacitated patients and patients subject or liable to compulsion; 205
  14. 14. (iii) the implementation of any international legal standards or principles prescribed by regulations.(b) to scrutinise all statutory documents completed by or under the Act that are receivedby the Commission, to advise those furnishing them of any irregularities, and to correct oramend them where appropriate and in whatever way is deemed appropriate.(c) unless the patient objects, whenever reasonably requested by a person or bodyspecified in regulations, to visit and/or review the care and treatment of anyincapacitated patient or patient subject to compulsion under the Act.(d) whenever reasonably requested by a person or body specified in regulations, to reviewthe way in which the Mental Health Act is being applied in respect of incapacitatedpatients or patients subject to compulsion under it by any person, group of persons,establishment or body.(e) to review any case where it appears there may be ill-treatment, neglect in care ortreatment, or the improper detention, compulsion or supervision of any person who maybe suffering from mental disorder; and, where appropriate, to undertake or arrange fortheir independent investigation.(f) to review the circumstances surrounding the death or physical harm of any person orpersons subject to compulsion; and, where appropriate, to undertake or arrange for theirindependent investigation.(g) to bring to the attention of the Secretary of State, any court, health service body,local authority, company, person or body of persons the facts of any case in which in theopinion of the Commission it is desirable for the person notified to exercise any of theirfunctions to secure the welfare of a patient suffering from mental disorder by— (i) preventing his ill-treatment; (ii) remedying any deficiency in his care or treatment; (iii) terminating his improper detention; or (iv) preventing or redressing loss or damage to his property.(h) where it appears to them that there is no legal authority for an unrestricted patient’sformal assessment or compulsory care or treatment and the period for rectifying the erroror omission has expired, to formally declare by use of a prescribed form that theapplication, order or direction is of no legal effect.(i) to determine any matters or points of law concerning statutory powers and dutiesreferred to it by mental health tribunals or prescribed bodies (health service bodies,social services authorities, registered independent providers of certain descriptions).(j) to review, and where deemed appropriate to order the termination of, any use ofsolitary confinement or restraint.(k) to review, and where deemed appropriate to order the termination of, anyrestrictions placed on patients’ rights to communicate with others.(l) to investigate alleged offences under Part IX of the Act (ill-treatment, neglect, etc).(m) to advise any person or body of persons on matters connected with its statutoryfunctions, but only if the Commission considers that the person or body of persons seekingthe advice cannot afford professional legal advice or the matter referred to it is unusuallydifficult.(n) to publish a code of practice on the Act.(o) to publish a biennial report which describes the way in which it has performed itsstatutory functions. 206
  15. 15. (2) The duties imposed by paragraphs (h) and (i) of subsection (1) shall be exercised only bya Commissioner who is a solicitor or barrister.RegulationsWith regard to paragraphs (c) and (d) of subsection (1), the regulations would designatethe following persons and bodies: the patient; a carer; the Secretary of State; the NationalInstitute for Mental Health in England; the National Patient Safety Agency; an NHS body; alocal authority overview and scrutiny committee; the Health Service Commissioner,Parliamentary Commissioner, or Local Authority Commissioner; a Patients Forum; theCommission for Patient and Public Involvement in Health; the Commission for HealthImprovement; the National Care Standards Commission; certain voluntary agencies (MIND,the NSF, SANE).Powers and sanctions7.—(1) The Commission may institute proceedings for any offence under Part IX of this Act,but without prejudice to any provision of that Part of the Act requiring the consent of theDirector of Public Prosecutions for the institution of such proceedings.(2) For the purpose of any review or investigation under section 6 of this Act, (a) the Mental Health Law Commission may, by notice in writing, require any person to attend at the time and place set forth in the notice to give evidence, but no person shall be required in obedience to such a notice to go more than 10 miles from his place of residence unless the necessary expenses of his attendance are paid or tendered to him. (b) a person giving evidence shall not be required to answer any questions which he would be entitled, on the ground of privilege or confidentiality, to refuse to answer if the inquiry were a proceeding in a court of law. (c) the proceedings shall have the privilege of a court of law. (d) the chairman of the review or investigation or the person holding it may administer oaths to witnesses and examine witnesses on oath, and may accept, instead of evidence on oath by any person, evidence on affirmation or a statement in writing by that person.(3) Where in the exercise of its functions under section 6 the Commission has advised anybody or person on any matter or brought any case or matter to the attention of any body orperson, the Commission may by notice in writing addressed to that body or person requirethat body or person, within such reasonable period as the Commission may specify in thenotice, to provide to the Commission such information concerning the steps taken or to betaken by that body or person in relation to that case or matter as the Commission may sospecify; and it shall be the duty of every body or person on whom a notice is served underthis subsection to comply as soon as practicable with the requirements of that notice.(4) Where a notice has been served under subsection (6), and the Commission is of theopinion that the case or matter referred to in the notice has not been adequately dealtwith by that body or person, the Commission may by notice serve on that body or person afurther notice in a form prescribed by regulations requiring it to take such steps as arespecified in the notice within the time there specified; and it shall be the duty of the bodyor person on whom a notice is served to comply as soon as practicable with therequirements of that notice.(5) Failure to comply with a notice issued under subsection (7) shall be a criminal offence.(6) Subsections (3) and (4) do not apply to the Mental Health Tribunal or to the Court ofProtection, and are not to be interpreted as empowering the Commission to require that anapplication is made in respect of a patient under Part II of this Act, or that a patient ismade subject to any other form of detention or restraint.(7) Where, in the course of carrying out any of their functions, the Commission form theopinion that a restricted patient should be absolutely discharged, conditionally discharged, 207
  16. 16. transferred to another hospital or granted leave of absence, it shall recommend accordinglyto the Secretary of State.(8) For the purposes of carrying out its functions under this Act, any Commission or personauthorized by the Commission may: (a) inspect any premises used to treat, care for or to restrain incapacitated persons or persons subject to compulsion under this Act; (b) interview, and if a registered medical practitioner or nurse examine, any patient in private. (c) require the production of and inspect and copy any records relating to the compulsion, care or treatment of any person who is or has been a patient in a hospital, or who is or has been subject to formal assessment, restrictions, or a care and treatment order.(9) Where under section 6(1)(h) the Commission has formally declared that an application,order or direction is of no legal effect, the patient shall be released from any compulsion orrestraint within 24 hours of receipt of the notice by the responsible authority unless duringthat period the clinical supervisor furnishes the Commission with a notice in the prescribedform stating that he intends to seek a fresh application, order or direction.(10) Where a notice is served by the clinical supervisor under the foregoing subsection, thepatient shall be released after the expiration of 72 hours from the time the Commission’snotice was received unless he is by then subject to a new application, order or directionmade under the Act.(11) A matter or point of law may only be referred to the Commission by a mental healthtribunal under section 6(1)(i) with the consent of the tribunal, the patient, the applicant (ifnot the patient), the Secretary of State (in restricted cases) and the responsible authority;and any decision made by a Commissioner following such a referral, and any directionsgiven by him consequential to his decision, shall be binding on the parties unless thetribunal or one of the parties serves notice within 7 days of their receipt of it of theirintention to restate the point of law for the High Court’s determination.Financial provisions8.—(1) There shall, in respect of each financial year, be paid by the Secretary of State tothe Commission such sums as the Treasury may determine towards the expenditure incurredby the Commission in the exercise of its functions in that year.(2) Payments under paragraph (1) shall be made at such times and in such manner andsubject to such conditions as to records, certificates or otherwise as the Treasury maydetermine.(3) It shall be the duty of the Commission so to perform its functions as to secure that theexpenditure attributable to the performance of its functions in each financial year does notexceed the aggregate of the amounts received by the Commission under paragraph (1) inrespect of that year.Accounts and audit9.—(1) The Commission shall— (a) keep, in such form as the Secretary of State may direct, accounts of all moneys received or paid out by it; (b) prepare, in respect of each financial year, a statement of accounts in such form as the Secretary of State, with the approval of the Treasury, may direct.(2) The accounts of the Commission shall be audited by auditors appointed by the Secretaryo f St a t e . 208
  17. 17. (3) The statement of accounts prepared under paragraph (1)(b) together with the report ofthe auditors thereon shall be sent to the Secretary of State.(4) The Secretary of State shall send to the Audit Commission a copy of the statement ofaccounts and auditors report received under paragraph (3).(5) The Audit Commission— (a) shall examine the statement of accounts and auditors’ report received under paragraph (4), certify the statement of accounts and prepare a report on the results of his examination; (b) may, for the purposes of his examination, examine all accounts of the Commission and any records relating thereto.(6) The Secretary of State shall lay before Parliament a copy of the statement of accountsof the Commission certified by the Audit Commission together with a copy of his report andof the auditors report thereon.(7) The Secretary of State may give directions generally with respect to the audit ofaccounts under paragraph (2) and, in particular, may confer on the auditor— (a) such rights of access to, and production of, books, accounts, vouchers or other documents as may be specified in the directions; and (b) such right, in such conditions as may be so specified, to require from any member or officer, or former member or officer, of the Commission such information relating to the affairs of the Commission as the Secretary of State may think necessary for the proper performance of the duty of the auditor.Mental Health Act Commission10.—(1) The Mental Health Act Commission shall complete any complaints investigationsand other work that is in progress on the day on which the Mental Health Law Commissionbecomes operational but shall not otherwise exercise any of the functions conferred on itby the Mental Health Act 1983.(2) The Secretary of State may give the Mental Health Act Commission directions as to thecompletion of complaints investigations and other work in progress.(3) The Mental Health Act Commission shall cease to exist on a date determined by theSecretary of State.Solitary confinement and restraint11.—(1) A patient shall not be placed or kept in solitary confinement or be subjected to anyform of restraint unless either— (a) his solitary confinement or restraint is immediately necessary and represents the minimum interference necessary to prevent the patient from behaving violently or being a danger to himself or others; or (b) his being placed or kept in solitary confinement is a medical treatment which has been authorised by a certificate in writing given under section 58(3) above.(2) One of the managers of a hospital or a member of the Mental Health Law Commissionmay at any time direct that a person who is being kept in solitary confinement otherwisethan under subsection 1(b) above shall immediately cease to be so confined and, where hedoes so, he shall record his reasons for doing so in writing.(3) One of the medical Commissioners may at any time direct that a person who is beingkept in solitary confinement under subsection 1(b) above shall immediately cease to be soconfined and, where he does so, he shall record his reasons for doing so in writing.(4) A full record in the form prescribed by regulations of every case of solitary confinementand restraint shall be kept from day to day and a copy of the records and certificates made 209
  18. 18. under this section shall be sent to the Mental Health Commission at the end of everyquarter.(5) In this section—‘solitary confinement’ means the confinement of a patient alone in a room at any time ofthe day or night and a patient is confined to a room if he may not leave that room at will;‘patient’ means a person suffering or appearing to be suffering from mental disorder.(6) This section applies to all hospitals and care homes in England and Wales.(7) Any person who wilfully acts in contravention of this section shall be guilty of anoffence.Interpretation145.—(1) In this Act, unless the context otherwise requires— ...‘medical treatment’ includes .... the solitary confinement of a patient whose solitaryconfinement has been authorised by a certificate in writing given under section 58(3) aboveand excludes all other instances of solitary confinement;‘solitary confinement’ has the meaning given in section 11 and the term includes seclusionand other cognate expressions. 1 210

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