1. COMMISSION’S FUNCTIONS
Having regard to English and international constitutional standards, the following
functions ought to be performed by a Mental Health Commission:
LEGAL STANDARDS & FUNCTIONS OF A SPECIALIST COMMISSION
KEEP THE OPERATION OF To keep under review the exercise of the powers and duties
THE 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.
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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 physical
TO 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 the
CONFINEMENT OR termination of, any use of solitary confinement (seclusion) and
RESTRAINT 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 the
TO 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
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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 functions
RELEASE OF THOSE At their discretion, to order the release of any unrestricted
SUBJECT TO UNLAWFUL patient who is unlawfully detained (power exercisable only by
COMPULSION 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 functions
TRAINING Power to provide training on matters within its remit, and to
charge for such training.
PUBLICATIONS Power to charge for publications
Powers
GENERAL POWERS As for CHI, but appointments, reappointments, and powers of
inquiry and investigation not subject to Ministerial control.
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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 BODIES
QUALITY COMMISSIONS To review, and where appropriate investigate, the suitability
(CHI AND THE NATIONAL and quality of premises used for providing health or social care
CARE 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.
CONCLUSION
The existence of a specialist commission is the most effective way of ensuring the
statutory powers are not abused. Such protections need to be strengthened, not
diluted. The wicked are wicked, no doubt, and they go astray and they fall, and
they come by their deserts; but who can tell the mischief which the very virtuous
do?1
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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 COMMISSION
For those who accept the need for a specialist Mental Health Commission, the
issue becomes what form it should take, and what particular functions it should
perform. These matters are dealt with under the following headings:
Name Funding
Constitution Ethos
Functions Supervision
Membership
Name
There is a case for disestablishing the Mental Health Act Commission and starting
again, so that the new arrangements are not undermined at the outset by any
negative perceptions of the existing commission. The MHAC would briefly co-exist
with the new Commission, during which time it would complete complaints
investigations 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 legal
standards, rather than quality standards. The enactment of the Human Rights Act
1998, and the need to deal with seclusion, ill-treatment, and so forth, means that
its 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.
Constitution
The critical constitutional issue is the extent to which any new commission will be
independent of central government. The protection of individuals’ legal rights is a
constitutional matter, and ought not to be subject to political considerations or
pressures.
Many people believe that the commission’s performance has been affected by
tight political control, characterised by the appointment of a former Home Office
civil servant as its chairperson at a time when the Act is being reviewed. There
has sometimes been a fear among members that constructive, sensible, criticism
that is evidence-based may lead to non-reappointment.
The Commission’s performance has been undermined in more general ways by its
status as a special health authority. This has rendered it subject to paper-heavy
procedures devised for health service bodies, a class to which it belongs in name
only.
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6. The most suitable arrangement may be for a new Commission to report directly
to Parliament. Failing this, it should be a non-departmental public body, with a
large measure of self-governance and independence guaranteed by regulations.
Provided it is independent, success depends more on the skill and competence of
its members and officers than on the formal structure.
Functions
The functions that the Commission would perform have already been described.
In essence, a new Mental Health Law Commission would be concerned with legal
standards, and bodies such as CHI and the National Care Standards Commission
would focus on service quality.
Membership
There is a lack of evidence that the many reorganisations of NHS structures since
1973 have been effective in terms of improving performance at the point of
delivery.
The Mental Health Act Commission’s administration has also been reorganised
many times and, here also, there is no clear evidence that the reforms were
justified by improved outcomes.
That structural reforms have had little positive impact is not surprising if it is true
that people make systems work, systems don’t make people work (the ‘Marxist
fallacy’). Structures can be radically changed and still have no impact on what is
delivered to patients.
Given that health care is delivered differently around the world, common sense
suggests that many systems can work, if they are adequately resourced, and
those 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 of
expertise and judgement, the key is recruiting the best, and then trusting and
utilising their professional expertise and judgement. Service failure is most often
due to under-funding at several levels. It starts at school, and finishes with a
failure to recruit or train the best, and bureaucratic structures to manage staff
who cannot be relied on to work independently.
If this is correct, the success or failure of a new Commission will turn mainly on
its membership and, more particularly, recruitment.
The existing commission has been under-funded, with the consequence that rates
of pay are low, it has been impossible to recruit or engage leading experts, and
the part-time membership has ended up being enlarged, and to some extent
casualised, in order to increase output. This has led to diminished professional
standing and a failure to adhere to the statutory remit. The members concentrate
and comment on those matters they feel confident to express an opinion on, and
lay and social care members tend to concentrate and comment on lay and social
care issues. It is probably impossible, in any case, properly to co-ordinate the
efforts of 150 part-time Commissioners across a geographical area as large as
England and Wales.
The remedy appears to be an expert, specialist commission, mainly staffed by
full-time practitioners. Members’ posts should be senior appointments, requiring
exceptional personal qualities, and strong oral, written and analytical skills.
Salaries should be set at a level that is attractive to leading members of the
relevant professions. Having said that, the overriding aim must be to attract the
best. Where necessary, short-term secondments, the employment of expert
practitioners on a part-time basis, and flexible arrangements that allow individual
6

7. practitioners to be instructed to undertake one-off projects or cases should be
possible.
Because the new Commission will focus on legal standards — and, of course, the
Mental Health Act Commission itself should be concentrating on Mental Health Act
powers 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 a
non-professional management board. One cannot have those with expertise being
led 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. The
members, and those seeking the commission’s advice, must respect the authority
and competency of the leadership to speak on legal matters within the Mental
Health Law Commission’s remit.
Further still, it is inappropriate to appoint a person with a non-service background
to the Chief Executive position. That position ought to be filled by a mental health
services 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.
Funding
A rough estimate of some of the costs involved in adopting this model is set out
in the spreadsheet below. A £2.5m budget would allow for 42 ‘whole-time
equivalent’ members, organised into four regional teams:
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9. 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 £936,000
MEDICAL DIRECTOR £90,000 Consultant Forensic Psychiatrist £70,000 Consultant Forensic Psychiatrist £70,000 Consultant Psychiatrist £70,000
Consultant Psychiatrist £70,000 Consultant Psychiatrist £70,000 Consultant Psychiatrist £70,000 Consultant Psychiatrist £70,000
Specialist Registrar £44,000 Specialist Registrar £44,000 Specialist Registrar £44,000 Specialist Registrar £44,000
Incapacity budget £45,000 Incapacity budget £45,000 Incapacity budget £45,000 Incapacity budget £45,000
Budget £249,000 £229,000 £229,000 £229,000
LEGAL COMMISSIONERS (12) = Legal Budget of £597,000
Senior Legal Officer £55,000 Senior Legal Officer £55,000 LEGAL DIRECTOR £80,000 Senior Legal Officer £55,000
Commissioner £44,000 Commissioner £44,000 Commissioner £44,000 Commissioner £44,000
Commissioner £44,000 Commissioner £44,000 Commissioner £44,000 Commissioner £44,000
Budget £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 £776,000
Nurse £44,000 Nurse £44,000 Nurse £44,000 NURSING DIRECTOR £80,000
Social worker £44,000 SOCIAL CARE DIRECTOR £80,000 Social worker £44,000 Social worker £44,000
Psychologist £44,000 Psychologist £44,000 Psychologist £44,000 Psychologist £44,000
Specialist £44,000 Specialist £44,000 Specialist £44,000 Specialist £44,000
Budget £176,000 £212,000 £176,000 £212,000
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11. 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 EXECUTIVE'S O F ICE F
(Execution of the management board's 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 to
remunerate overview and scrutiny committee members; to employ a number of
legal executives for each team; and to engage non-members on a case-by-case
basis (this will be desirable where geographical remoteness, speed of response,
or the need for some special skill make it necessary to go outside the
Commission).
According to the MHAC’s Eighth Biennial Report, the Commission spent £765,000
on Commission members’ fees and £711,000 on second opinion medical fees,
totalling just under £1.5 million. There were around 15,000 requests for second
opinions (about 40 per day at an average cost per opinion of £47.40).
The model suggested here allows for 42 ‘whole-time equivalent’ members
organised into four regional teams. This allows for up to 37,000 annual patient
contacts; 7410 Commissioner hospital visiting days; and 1755 other
Commissioner days (inquests, conferences, research, briefings, practice notes,
website maintenance, responses to Government papers, corporate work, etc).
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12. Each commissioner would be responsible for around 1100 incapacitated patients
and 325 detained patients at any given time; and an incalculable number of
persons subject to new community powers.
Ethos
The 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 of
interaction between members and staff in support of each other. Members and
staff would work on cases electronically. The Commission’s IT systems would
provide electronic access to reference materials and case documentation, which
could be reviewed using data-mining facilities and other specific IT casework
tools.
Commission members would have four key roles: advising and mentoring case
review 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 strategic
direction of the Commission, and ensuring that it fulfils its duties within the
statutory framework, available resources, and the limits of its authority.
Members would be expected to abide by a written code of conduct.
Supervision
The new Commission should be accountable to the Audit Commission in the area
of financial management and value for money. In terms of its statutory remit, it
would be scrutinised by the overview and scrutiny committee made up of
independent 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 DETAIL
The following is a draft of how the main relevant sections of a new Act might look
if based on the above model.
Mental Health Law Commission
1.—(1) There shall be established a body to be called the Mental Health Law Commission (in
this 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:
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13. (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 is
a 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 a
solicitor or barrister), legal director, medical director, social care director, and nursing
director.
(7) The persons so appointed shall thereupon become the first members of the Commission
and together form an interim management board, holding their respective offices for a
period of six years commencing from the day on which the Commission becomes
operational.
(8) The remaining Commissioners, who shall include a Chief Executive and a finance
director, shall be appointed by the interim management board, and shall hold office for a
period of five years commencing from the day on which the Commission becomes
operational.
(9) Following the appointment of a Chief Executive and a finance director, the Commission
shall 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 finance
director.
(10) When deciding who to appoint as Commissioners, the Secretary of State, the interim
management board and the Commission Management Board shall have regard only to the
achievements and standing of candidates in their respective professions; their integrity;
their personal qualities; their oral, written and analytical skills; their competency; their
knowledge and understanding of mental health law; and their ability to discharge the
Commission’s functions without supervision.
(11) When deciding who to appoint as Commissioners, the Secretary of State, the interim
management board and the Commission Management Board shall not have any regard to the
mere 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 outstanding
achievement in his professional field to apply for appointment as an Honorary Commissioner
and may personally recommend their appointment to the interim management board or the
Commission Management Board.
(13) Honorary Commissioners shall not be under any obligation to discharge any of the
Commission’s functions but may do so by agreement with the Chairman, the Chief
Executive or the Commission Management Board.
(14) During any Commissioner’s term of office, tenure of office may only be terminated on
the ground of incompetence or gross misconduct.
(15) The Commission may pay to commissioners such remuneration, and arrange or provide
for the payment of such pensions, allowances or gratuities to or for them, as it considers
appropriate; and different provision may be made for different cases or different classes of
case.
(16) Schedule 1 shall have effect in relation to the Commission.
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14. Commission Management Board
2.—(1) Within three months of the day on which all of the remaining Commissioners have
been appointed in accordance with section 1, a permanent Management Board (referred to
in this Act as the ‘Commission Management Board’) shall be established by the interim
management 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 their
functions by the Chief Executive or by a member or employee of the Commission, but not
by a committee or sub-committee otherwise that when making appointments.
Functions of the Chief Executive
3.—(1) The Chief Executive of the Commission shall seek to ensure the implementation of
decisions made by the interim management board, the Commission Management Board, and
by persons authorised to make decisions on their behalf.
(2) The Chief Executive shall seek to ensure that the Commission’s business is conducted
with the minimum amount of regulation and that providers of legal, health and social care
services are not subject to unnecessary regulation.
(3) The Chief Executive shall seek to promote within the Commission standards of
professional 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 well
treated 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 of
equivalent size and resources might reasonably expect to receive.
(5) The Chief Executive may arrange for the discharge of any of his functions by a member
or employee of the Commission, but not by a committee or sub-committee.
Overview and Scrutiny Committee
4.—(1) Within one month of the day on which all of the remaining Commissioners have been
appointed in accordance with the foregoing section, an Overview and Scrutiny Committee
shall be established by the interim management board.
(2) The Overview and Scrutiny Committee shall consist of:
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15. (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 any
documentation 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 its
functions 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 and
subject to such terms and conditions as the Secretary of State may determine, and
vacancies on the committee shall be filled by him.
Employees and other appointments
5.—(1) The Chief Executive shall employ a statistician and a person who shall be responsible
for information technology and the processing of electronic information.
(2) The Chief Executive may appoint such other employees as he considers appropriate on
such terms and conditions as he determines, and such determinations may make different
provision for different cases or different classes of case.
(3) The Commission Management Board (and any person authorized by it, including the
Chief Executive) may arrange for such persons as it thinks fit to assist the Commission in
the discharge of any of its functions, and any persons so authorized shall be regarded as a
Commissioner and have the same powers and duties as a Commissioner when performing
the functions they are authorized to perform.
(4) Arrangements made under the preceding subsection may provide for the payment of
remuneration and allowances to such persons.
(5) The Secretary of State may provide for the Commission such officers and servants and
such accommodation as it may require.
Functions of the Commission
6.—(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;
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16. (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 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.
(c) unless the patient objects, whenever reasonably requested by a person or body
specified in regulations, to visit and/or review the care and treatment of any
incapacitated patient or patient subject to compulsion under the Act.
(d) 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.
(e) 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 arrange for
their independent investigation.
(f) to review the circumstances surrounding the death or physical harm of any person or
persons subject to compulsion; and, where appropriate, to undertake or arrange for their
independent 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 the
opinion of the Commission it is desirable for the person notified to exercise any of their
functions 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’s
formal assessment or compulsory care or treatment and the period for rectifying the error
or omission has expired, to formally declare by use of a prescribed form that the
application, order or direction is of no legal effect.
(i) 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).
(j) to review, and where deemed appropriate to order the termination of, any use of
solitary confinement or restraint.
(k) to review, and where deemed appropriate to order the termination of, any
restrictions 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 statutory
functions, but only if the Commission considers that the person or body of persons seeking
the advice cannot afford professional legal advice or the matter referred to it is unusually
difficult.
(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 its
statutory functions.
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17. (2) The duties imposed by paragraphs (h) and (i) of subsection (1) shall be exercised only by
a Commissioner who is a solicitor or barrister.
Regulations
With regard to paragraphs (c) and (d) of subsection (1), the regulations would 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).
Powers and sanctions
7.—(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 the
Director 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 any
body or person on any matter or brought any case or matter to the attention of any body or
person, the Commission may by notice in writing addressed to that body or person require
that body or person, within such reasonable period as the Commission may specify in the
notice, to provide to the Commission such information concerning the steps taken or to be
taken by that body or person in relation to that case or matter as the Commission may so
specify; and it shall be the duty of every body or person on whom a notice is served under
this 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 the
opinion that the case or matter referred to in the notice has not been adequately dealt
with by that body or person, the Commission may by notice serve on that body or person a
further notice in a form prescribed by regulations requiring it to take such steps as are
specified in the notice within the time there specified; and it shall be the duty of the body
or person on whom a notice is served to comply as soon as practicable with the
requirements 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 of
Protection, and are not to be interpreted as empowering the Commission to require that an
application is made in respect of a patient under Part II of this Act, or that a patient is
made subject to any other form of detention or restraint.
(7) Where, in the course of carrying out any of their functions, the Commission form the
opinion that a restricted patient should be absolutely discharged, conditionally discharged,
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18. transferred to another hospital or granted leave of absence, it shall recommend accordingly
to the Secretary of State.
(8) For the purposes of carrying out its functions under this Act, any Commission or person
authorized 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 or
restraint within 24 hours of receipt of the notice by the responsible authority unless during
that period the clinical supervisor furnishes the Commission with a notice in the prescribed
form 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, the
patient shall be released after the expiration of 72 hours from the time the Commission’s
notice was received unless he is by then subject to a new application, order or direction
made under the Act.
(11) A matter or point of law may only be referred to the Commission by a mental health
tribunal under section 6(1)(i) with the consent of the tribunal, the patient, the applicant (if
not 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 directions
given by him consequential to his decision, shall be binding on the parties unless the
tribunal or one of the parties serves notice within 7 days of their receipt of it of their
intention to restate the point of law for the High Court’s determination.
Financial provisions
8.—(1) There shall, in respect of each financial year, be paid by the Secretary of State to
the Commission such sums as the Treasury may determine towards the expenditure incurred
by 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 and
subject to such conditions as to records, certificates or otherwise as the Treasury may
determine.
(3) It shall be the duty of the Commission so to perform its functions as to secure that the
expenditure attributable to the performance of its functions in each financial year does not
exceed the aggregate of the amounts received by the Commission under paragraph (1) in
respect of that year.
Accounts and audit
9.—(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 Secretary
o f St a t e .
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19. (3) The statement of accounts prepared under paragraph (1)(b) together with the report of
the 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 of
accounts 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 accounts
of the Commission certified by the Audit Commission together with a copy of his report and
of the auditors' report thereon.
(7) The Secretary of State may give directions generally with respect to the audit of
accounts 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 Commission
10.—(1) The Mental Health Act Commission shall complete any complaints investigations
and other work that is in progress on the day on which the Mental Health Law Commission
becomes operational but shall not otherwise exercise any of the functions conferred on it
by the Mental Health Act 1983.
(2) The Secretary of State may give the Mental Health Act Commission directions as to the
completion of complaints investigations and other work in progress.
(3) The Mental Health Act Commission shall cease to exist on a date determined by the
Secretary of State.
Solitary confinement and restraint
11.—(1) A patient shall not be placed or kept in solitary confinement or be subjected to any
form 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 Commission
may at any time direct that a person who is being kept in solitary confinement otherwise
than under subsection 1(b) above shall immediately cease to be so confined and, where he
does 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 being
kept in solitary confinement under subsection 1(b) above shall immediately cease to be so
confined 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 confinement
and restraint shall be kept from day to day and a copy of the records and certificates made
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20. under this section shall be sent to the Mental Health Commission at the end of every
quarter.
(5) In this section—
‘solitary confinement’ means the confinement of a patient alone in a room at any time of
the 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 an
offence.
Interpretation
145.—(1) In this Act, unless the context otherwise requires— ...
‘medical treatment’ includes .... the solitary confinement of a patient whose solitary
confinement has been authorised by a certificate in writing given under section 58(3) above
and excludes all other instances of solitary confinement;
‘solitary confinement’ has the meaning given in section 11 and the term includes seclusion
and other cognate expressions.
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