The Mental Health Act 1983 ("the Act") applies to both England. However, as a result of the devolution settlement, there are some important differences with regard to the application of the Act in the Wales.
1. The main differences are:
2. The Code of Practice:Section 118 of the Act imposes a duty on the Secretary of State to prepare, publish and from time to time revise, a Code of Practice for the guidance of those concerned with the admission, treatment, guardianship and supervised community treatment of mentally disordered patients. In relation to Wales, the duty is that of the Welsh Ministers. The Welsh Code of Practice, which came into force in November 2008, must provide guidance to independent mental health advocates appointed under s.130E of the Act.
3. Health commissioning bodies: Due to the fact that the NHS is organised differently in England and Wales, those sections of the Act that place responsibilities on clinical commissioning groups in England are placed on Local Health Boards in Wales.
4. Functions of the Secretary of State: Most of the powers and duties that the Act places on the Secretary of State have been transferred to the Welsh Ministers.
5. Restricted patients: The powers of the Secretary of State with regard to restricted patients (i.e. patients who have been made subject to a restriction order (or its equivalent) by the courts) have not been transferred to the Welsh Ministers.
6. Review and investigatory powers: Section 120 of the Act places a duty on the regulatory authority to review and, where appropriate, investigate the exercise of powers and the discharge of duties in relation to detention, supervised community treatment and guardianship under the Act. The Welsh Ministers act as the regulatory body in Wales. The Health Inspectorate Wales performs this function, together with the related functions under ss.120A-120D, on behalf of the Welsh Ministers.
7. The Mental Health Review Tribunal for Wales:Section 65 of the Act, together with Sch.2, provides for the establishment of a Mental Health Review Tribunal for Wales. This Tribunal, which has a Chairman and covers the whole of Wales, has its office within the National Assembly for Wales administrative building in Cardiff. The equivalent tribunal in England, the First-tier Tribunal (Mental Health), was established under the Tribunals, Courts and Enforcement Act 2007. The two tribunals have identical powers and duties to discharge patients and to make recommendations.
8. The Mental Health Review Tribunal for Wales Rules 2008/2705, which are made under s.78 of the Act, govern the practice and procedure to be followed in proceedings before the Mental Health Review Tribunal for Wales.
9. As the Mental Health Review Tribunal for Wales is not administered through the Courts and Tribunal Service, s.78A of the Act ensures that the onward appeal right to the Upper Tribunal which is enjoyed by the First-tier Tribunal (Mental Health) is also available in Wales.
10. Independent Mental Health Advocates ("IMHAs"): The responsibilities of IMHAs in Wales are greater than those that apply in England as a result of amendments made to the Act by the Mental Health (Wales) Measure 2010. Section 130E of the Act places a duty on the Welsh Ministers to make arrangements for help to be provided by IMHAs. Such help must be made available to two client groups: Welsh qualifying compulsory patients, as defined in s.130I, and Welsh qualifying informal patents, as defined in s.130J. The nature of the help to be provided is set out in s.130F, for compulsory patients, and s.130G, for informal patients. The duty to give information about the IMHA service to patients is governed by ss.130K-130L.
11. The Mental Health (Independent Mental Health Advocates) (Wales) Regulations 2011/2501 contain provisions about who may be appointed to act as an IMHA, and persons who may be visited and interviewed by an IMHA for the purpose of providing help to a Welsh qualifying patient who has been admitted under s.4 of the Act.
12. Approval of Approved Mental Health Professionals ("AMHPs") and of courses for the training of AMHPs: The Welsh Ministers have made regulations relating to the approval of persons to act as AMHPs in relation to Wales: see the Mental Health (Approval of Persons to be Approved Mental Health Professionals) (Wales) Regulations 2008/2436.
13. Section 114A of the Act enables the Care Council for Wales to approve courses for the training of Welsh AMHPs, regardless of the trainees' profession.
14. The Mental Health (Hospital, Guardianship, Community Treatment and Consent to Treatment) (Wales) Regulations 2008/2439: The Welsh Ministers have made these Regulations which are the principal regulations dealing with the exercise of compulsory powers in respect of persons liable to be detained in hospital or under guardianship, together with community patients, under the Act. They are divided into ten Parts. Schedule 1 to the Regulations contains the statutory forms which are referred to within the Regulations.
15. Part 1 (regs 1-3) contains general provisions affecting the interpretation of the Regulations and procedures relating to documentation required by the Act.
16. Part 2 (regs 4-8) contains provisions relating to the procedure for, and record of, hospital admissions, renewal of authority for detention and the discharge of patients liable to be detained. It further specifies information to be given to patients liable to be detained and their nearest relatives.
17. Part 3 (regs 9-15) contains provisions relating to the procedure for, and record of guardianship, renewal of guardianship, and discharge of patients under guardianship. It also contains provisions relating to the duties of private guardians. It further specifies information to be given to guardianship patients and their nearest relatives.
18. Part 4 (regs 16-22) contains provisions relating to the procedure for, and record of, community treatment orders and extension of such orders. It also contains provision relating to the recall and release of community patients, the revocation of community treatment orders upon recall of community patients and the discharge of community patients. It further specifies information to be given to community patients and their nearest relatives.
19. Part 5 (regs 23-32) contains provisions relating to the transfer and conveyance of patients between hospitals, or guardianship and from hospitals to guardianship and vice versa. It also contains provisions relating to the assignment of responsibility for community patients and transfer of such patients upon recall. Provision is made for the removal of patients to Wales from Scotland, Northern Ireland, any of the Channel Islands or the Isle of Man. Provision is also made in relation to the transfer of patients between Wales and England. It also specified information to be given to patients and their nearest relatives in the event of the transfer of patients.
20. Part 6 (regs 33-34) contains provisions empowering nearest relatives to authorise other persons to exercise their functions under the Act, together with restrictions on the discharge of patients by nearest relatives.
21. Part 7 (regs 35-37) provides for delegation by hospital managers of their functions under the Act and their functions under the Domestic Violence, Crime and Victims Act 2004 as well as delegation of functions by local social services authorities.
22. Part 8 (regs 38 to 40) prescribes treatments (other than those specified in ss.57 and 58A of the Act) which either require consent and a second opinion or consent or a second opinion. It also sets out requirements as to certification of treatments administered under Pt.4 and Pt.4A of the Act.
23. Part 9 (regs 41 and 42) contains provisions regarding the correspondence of patients, setting out procedures to followed on the opening of postal packets and prescribing certain advocacy services for the purposes of s.134(3A) of the Act.
24. Part 10 (reg.43 and Sch.2) revokes specified secondary legislation.
25. The Mental Health (Mutual Recognition) Regulations 2008/1204: These Regulations set out the circumstances in which a practitioner approved in England for the purposes of s.12 of the Act or a person approved in relation to England to act as an approved clinician for the purposes of the Act may be treated as approved in relation to Wales by virtue of that approval, and vice versa. They apply where a patient is liable to be detained, subject to a community treatment order or subject to guardianship under the Act. This flexibility is particularly helpful in areas near the border between England and Wales, where services are accessed for patients across that border.
26. The Mental Health (Conflicts of Interest) (Wales) Regulations 2008/2440: These Regulations set out the circumstances in which there is a potential conflict of interest such that an AMHP cannot make an application mentioned in s.11(1) of the Act, or a registered medical practitioner cannot make a medical recommendation for the purposes of such an application.