Mental Health
(Jersey) Law 2016
A LAW to make provision as to the care
and treatment of persons suffering mental disorder; and as to the treatment,
under the criminal justice system, of offenders and other persons who may
suffer mental disorder; and for connected purposes
Adopted by the
States 13th September 2016
Sanctioned by
Order of Her Majesty in Council 14th December 2016
Registered by the
Royal Court 23rd
December 2016
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
part 1
Interpretation, application and other
general provisions
1 Interpretation
(1) In
this Law –
“admission application”
means an application under Article 18;
“approved establishment”
means an establishment or premises approved by the Minister under Article 5;
“approved practitioner”
means a person approved by the Minister under Article 16;
“assessment authorization”
has the meaning given by Article 21;
“authorized officer”
means a person authorized by the Minister under Article 6;
“Capacity Law” means
the Capacity and Self-Determination (Jersey) Law 2016[1];
“child” means a
person under the age of 18 years;
“code of practice”
means a code of practice issued under Article 90;
“Court”, except in
Parts 8 and 9, means the Royal Court;
“function” includes,
unless the context does not so permit, both a power and a duty;
“learning disability”
means a state of arrested or incomplete development of the mind which includes
significant impairment of intelligence and social functioning;
“mental disorder”
means, subject to paragraphs (2) and (3), any disorder or disability of the
mind;
“MHA” means an
independent mental health advocate appointed under Article 79;
“Minister” means the
Minister for Health and Social Services;
“nearest relative” –
(a) in
relation to certain patients aged under 18, has the meaning given by Article 9;
(b) in
relation to all other patients, has the meaning given by Article 8;
“nearest person”, in
relation to a patient, means the person determined, nominated or appointed as
such under Part 2;
“patient”, unless
otherwise specifically provided, means a person suffering or appearing to be
suffering mental disorder, whether or not that person is undergoing treatment
at the time of the application of a particular provision of this Law;
“prescribed” means
prescribed by an Order made by the Minister under Article 95;
“registered medical practitioner”
means a person registered as a medical practitioner under the Medical
Practitioners (Registration) (Jersey) Law 1960[2];
“responsible medical officer”
means a registered medical practitioner with specialist training in psychiatry
who is –
(a) in
relation to a patient liable to be detained under Part 3, the registered
medical practitioner with overall responsibility for the treatment of that
patient;
(b) in
relation to a patient subject to guardianship under Part 4, any registered
medical practitioner authorized by the Minister to act, either generally or in
any particular case, as the responsible medical officer;
“SOAD” has the
meaning given by Article 38(3);
“treatment”, unless
otherwise specifically provided, means any treatment for mental disorder, and
includes (but without limitation) –
(a) psychiatric
or physical treatment or nursing;
(b) medication;
(c) cognitive,
behavioural or other therapy;
(d) counselling
or other psychological intervention;
(e) training
or other rehabilitation;
whether or not provided on a regular basis, or by or in an approved
establishment;
“treatment authorization”
has the meaning given by Article 22(2);
“Tribunal” means the
Mental Health Review Tribunal constituted under Part 7.
(2) A
person with learning disability shall not be considered by reason of that
disability to be suffering from mental disorder for the purposes of Part 3,
unless the learning disability is associated with abnormally aggressive or
seriously irresponsible conduct on the part of that person.
(3) Dependence
on alcohol or drugs is not to be considered mental disorder or any other disability
of the mind for the purposes of this Law.
(4) In
this Law, except in Part 8, a reference to a person’s capacity or
lack of capacity is, unless otherwise indicated, to be interpreted in
accordance with the Capacity Law.
(5) The
States may by Regulations amend this Article.
2 Minister’s primary duty
(1) The
Minister’s primary duty under this Law is to make provision in Jersey for
the care and treatment of persons suffering mental disorder.
(2) In carrying
out the duty imposed by paragraph (1), the Minister must in particular –
(a) appoint
an administrator in accordance with Article 4;
(b) approve
establishments or premises in accordance with Article 5;
(c) appoint,
approve or, as the case may be, authorize all such medical and other officers
and persons as may from time to time be necessary for the purpose of giving
effect to this Law, and in particular such officers and persons as are required
to be appointed, approved or authorized under Articles 6, 16 and 38;
(d) keep,
and publish, a register of such appointments, approvals and authorizations, in
whatever manner the Minister considers appropriate; and
(e) issue
a code of practice in accordance with Article 90.
3 Ancillary functions of the Minister
(1) The
Minister may do anything which appears to the Minister to be necessary,
conducive or expedient to the proper discharge of the duty imposed by Article 2.
(2) In
particular, and without derogation to the generality of paragraph (1), the
Minister may –
(a) upon
appointing or authorizing any person, impose such terms and conditions as the
Minister may think fit;
(b) provide,
or secure the provision of, establishments and facilities for care and treatment,
and management and general supervision of such establishments and facilities;
(c) arrange,
or make arrangements for –
(i) the admission and
reception of persons into such establishments,
(ii) the treatment,
care and detention of patients in such establishments, and
(iii) the treatment and care
of patients who are not admitted to nor liable to be detained in approved
establishments;
(d) provide,
or secure the provision of, centres or other facilities for training,
occupation and employment of patients, and the equipment and maintenance of
such centres or facilities;
(e) provide,
or secure the provision of, ancillary or supplementary services designed for –
(i) the promotion of better
mental health,
(ii) the prevention of
mental disorder,
(iii) promoting better care
and treatment of patients, and
(iv) the welfare of
patients.
4 Appointment of administrator
(1) The
Minister must appoint a person to be the administrator in relation to such
matters under this Law, and under Part 5 of the Capacity Law, as the
Minister may (by code of practice or otherwise) direct.
(2) The
administrator must publish an annual report containing such information as the
Minister may direct, including (but not limited to) details as to approved
establishments and practitioners, and as to applications to the Mental Health
Review Tribunal.
5 Approved
establishments
(1) The
Minister must approve establishments or premises for the purpose of the care
and treatment of patients, upon such terms and conditions as (subject to paragraph (2))
the Minister may think fit.
(2) The
Minister may not exercise the function conferred by paragraph (1) unless
the Minister is satisfied that, having regard to the best available treatment,
the standard of treatment provided by the establishment or premises in question
is appropriate and adequate.
6 Authorized officers
(1) The
Minister may authorize as officers for the purposes of this Law (including,
where appropriate, for the purpose of carrying out functions conferred on the
Minister under this Law) such persons –
(a) as are
registered pursuant to the Health Care (Registration) (Jersey) Law 1995[3]; and
(b) have
such training and experience in the field of mental health and in the
application of mental health legislation and practice as may be prescribed,
upon such terms and conditions as the Minister may think fit.
(2) An
authorized officer must perform his or her functions under this Law –
(a) with
fairness and impartiality; and
(b) in
the best interests of any patient with whose care or treatment he or she is
involved.
(3) The
Minister may revoke an authorization under this Article, and may vary any terms
and conditions upon which such an authorization is granted.
part 2
THE ‘NEAREST PERSON’
7 Nearest
person in relation to a patient
(1) In
relation to every patient there shall be a natural person who fulfils the role of
the patient’s nearest person for the purposes of this Law.
(2) A
patient’s nearest relative (as determined in accordance with Article 8
or 9) shall be that patient’s nearest person, unless a nomination is
made under Article 10 or an appointment is made under Article 11.
(3) The
nearest person shall have all such functions as are conferred by this Law and
in particular the right to act on behalf of the patient as further provided by Article 13.
(4) The
role of a nearest person as defined by this Article is additional to, and does
not derogate from, the role of an independent mental health advocate under Article 79.
8 Definition of ‘nearest relative’
(1) This
Article applies to determine the nearest relative of –
(a) a
patient aged 18 or over;
(b) a
patient under 18 years of age to whom Article 8 does not apply.
(2) Where
the patient (when not admitted for treatment) ordinarily resides with or is
cared for by a relative, that relative is the patient’s nearest relative.
(3) A
relative for the purposes of this Part is a person who, at the time the
question falls to be determined (the “relevant time”), is the
patient’s –
(a) spouse
or civil partner;
(b) son
or daughter;
(c) father
or mother;
(d) brother
or sister;
(e) grandparent;
(f) grandchild;
(g) uncle
or aunt; or
(h) nephew
or niece.
(4) In
any case where paragraph (2) does not apply, the patient’s nearest
relative is the living person who at the relevant time is first (according to
the rules given by paragraphs (5) and (6)) in the list in paragraph (3).
(5) In
determining priority of relationships for the purposes of paragraph (3) –
(a) in
respect of sub-paragraphs (1)(b) to (h) –
(i) a relative of the
whole blood shall be preferred to a relative of the same description of the
half-blood, but otherwise a relative of the half-blood shall be treated as a
relative of the whole blood, and
(ii) the elder or
eldest of 2 or more relatives in any of those sub-paragraphs shall be preferred
to any other of those relatives, regardless of sex;
(b) an
adopted person shall be treated as the child of the person or persons by whom
he or she was adopted;
(c) a
child of persons who are not married to, or in a civil partnership with, each
other shall be treated –
(i) as the child of
his or her mother, or
(ii) where the
child’s father has parental responsibility for the child, as the child of
his or her father.
(6) A
person who would, apart from this paragraph, be the patient’s nearest
relative but who, at the relevant time –
(a) in
the case of a patient ordinarily resident in Jersey, is not so resident;
(b) being
the patient’s spouse or civil partner –
(i) is permanently
separated from the patient, either by agreement or under an order of court, or
(ii) has deserted, or
been deserted by, the patient for a period which has not come to an end; or
(c) not
being the spouse, civil partner, father or mother of the patient, is under 20 years
of age,
shall be disregarded for the purposes of paragraph (3).
9 ‘Nearest
relative’ of certain patients aged under 18
(1) This
Article applies to determine the person deemed to be the nearest relative of a
patient who is –
(a) under
18 years of age; and
(b) within
one of the cases described in paragraphs (2) to (4).
(2) In
a case where the rights and powers of a parent of the patient are vested in the
Minister or in any other person by order of a court, that person is the patient’s
nearest relative, in preference to any other person except a spouse or civil
partner of the patient.
(3) In
a case where –
(a) the
patient is a minor under tutelle; and
(b) his
or her guardian is a person other than –
(i) the patient’s
nearest relative as determined by Article 8, or
(ii) a nearest person
appointed under Article 11,
the guardian shall be the patient’s nearest relative, in
preference to any other person.
(4) In
a case where the patient is in the custody of any person –
(a) by
virtue of an order made by a court –
(i) in the exercise
of its jurisdiction whether customary or conferred by enactment,
(ii) in matrimonial
proceedings or proceedings for the annulment or dissolution of a civil
partnership; or
(b) by
virtue of a separation agreement made between the patient’s father and
mother,
the person having custody shall be the patient’s nearest
relative, in preference to any other person.
10 Nomination of nearest person
(1) A patient
who is aged 18 or over may nominate a person as his or her nearest person,
in the prescribed form or in writing substantially to the same effect and sent
to –
(a) the
person nominated; and
(b) the
Minister.
(2) The
Minister may nominate a person as the patient’s nearest person by giving
notice in writing to that person, where –
(a) a
patient –
(i) is under 18 years
of age, or
(ii) lacks the
necessary capacity to make such an appointment;
and
(b) the
patient’s nearest relative –
(i) cannot be
identified, or
(ii) has confirmed in
writing to the Minister that he or she is unable or unwilling to act as the
patient’s nearest person.
(3) A
nomination under paragraph (1) or (2) –
(a) shall
not take effect unless the person nominated (“R”) has given his or
her consent, in the prescribed form or in writing substantially to the same
effect, to acting as the patient’s nominated nearest person; and
(b) may
be revoked or varied by further written notice given by the patient or, as the
case may be, by the Minister.
(4) A
patient may nominate more than one person under paragraph (1), but in
doing so must indicate by that nomination the priority in which the appointees
are to act.
(5) R must
cease to act as the patient’s nearest person in any respect under this
Law, upon the occurrence of any of the following events –
(a) the
revocation by the patient of R’s nomination;
(b) the
revocation by the Minister of R’s appointment;
(c) the
death of either the patient or R;
(d) the
withdrawal by R, by notice in writing, of R’s consent;
(e) an
order of the court under Article 11 appointing a person other than R as the
patient’s nearest person.
11 Appointment
of nearest person by the Court
(1) On
an application made to the Court –
(a) by
one of the persons listed in paragraph (2) (the “applicant”);
and
(b) stating
one of the grounds listed in paragraph (4),
the Court may by order appoint the applicant to be the
patient’s nearest person, if the applicant consents to do so and in the
opinion of the Court the applicant is a proper person to carry out the
functions of a nearest person.
(2) The
applicant may be –
(a) the
patient;
(b) an
authorized officer;
(c) any
relative of the patient;
(d) any
other person with whom the patient ordinarily resides (when not admitted for
treatment).
(3) In the
case of an application made by an authorized officer, paragraph (1) shall
apply as if for the word “applicant”, in each place except sub-paragraph (a),
there were substituted the word “Minister”.
(4) An
application for an order may be made –
(a) where
no nearest person has been nominated under Article 10, on any of the
following grounds –
(i) that the patient
has no nearest relative or that it is not reasonably practicable to determine
whether or not the patient has a nearest relative, or the identity of such a
relative,
(ii) that the
patient’s nearest relative is incapable of acting as such by reason of
mental disorder or other illness, or
(iii) that the
patient’s nearest relative is otherwise not a suitable person to act as
such, by reason of matters which shall be stated in the application;
(b) where
a nearest person has been nominated under Article 10, on either of the
following grounds –
(i) that the
nominated nearest person is incapable of acting as such by reason of mental
disorder or other illness, or
(ii) that the
nominated nearest person is otherwise not a suitable person to act as such, by
reason of matters which shall be stated in the application.
12 Discharge, variation and cessation of orders under Article 11
(1) An
order under Article 11 may be discharged by the Court on an application
made –
(a) in
any case, by –
(i) the patient, or
(ii) the patient’s
nearest person appointed by the order; or
(b) where –
(i) the order was
made on a ground specified in paragraph (4)(a)(i) or (ii) of that Article,
or
(ii) a person who was
the patient’s nearest relative when the order was made has ceased to be
the patient’s nearest relative,
by a person who claims to be the patient’s nearest relative,
under Article 8 or 9.
(2) An
order under Article 11 may be varied by the Court on the application of –
(a) the
patient’s nearest person appointed by the order; or
(b) a
duly authorized officer,
by substituting for that nearest person the Minister or any other
person who, in the opinion of the Court, is a proper person and is capable of,
and consents to, carrying out the functions of the patient’s nearest
person.
(3) If
the nearest person appointed by an order under Article 11 dies, the
provisions of this Article shall apply as if for any reference to that person
there were substituted a reference to any relative of the patient, and until
the order is discharged or varied under this Article, no person shall exercise
the functions of the patient’s nearest person.
(4) An
order under Article 11 shall cease to have effect in accordance with
either paragraph (5) or paragraph (6), unless it is first discharged
under paragraph (1).
(5) If –
(a) on
the date of the order, the patient was liable to be detained or was subject to
guardianship under Part 4; or
(b) within
the period of 3 months beginning with the date of the order, the patient
became liable to be detained or subject to guardianship,
the order shall cease to have effect when the patient ceases to be
so liable or so subject, other than by being transferred under Article 26.
(6) If,
on the date of the order, the patient was not liable to be detained or subject
to guardianship under Part 4 and has not become so liable or so subject
within the period of 3 months beginning with the date of the order, the
order shall cease at the expiration of that period.
(7) Discharge,
variation or cessation of an order under this Article shall not affect the
validity of anything done under the order prior to such discharge or variation.
13 Rights
of nearest person to receive information as to patient’s care or
treatment
(1) Unless
one of the conditions in paragraph (3) is satisfied –
(a) the
responsible medical officer must provide the nearest person with details (in
writing, where reasonably practicable) of any care or treatment proposed in
respect of the patient;
(b) the
nearest person is entitled to make representations to the responsible medical
officer about such proposals; and
(c) the
responsible medical officer must, in prescribing or administering care or
treatment to the patient, have regard to any representations made under sub-paragraph (b).
(2) In
particular and without derogation from the general requirement in paragraph (1)(a),
the responsible medical officer must inform the nearest person –
(a) where
a treatment authorization is renewed under Article 22, of the reasons for
renewal mentioned in Article 22(4)(a);
(b) of
any leave of absence granted under Article 24, and of any conditions
(including treatment conditions) attaching to such leave of absence;
(c) where
a plan of treatment is formulated for the purposes of Part 6, of the
contents of the plan and of any significant changes which may be made to the
plan from time to time;
(d) of
any proposed treatment for which a certificate would be required from a SOAD
under Article 40 or 41; and
(e) of
such other details of a kind which may be specified in a code of practice.
(3) The
conditions mentioned in paragraph (1) are that –
(a) where
the patient has capacity to do so, the patient has refused to give consent to
the disclosure to the nearest person of the details of proposed care or
treatment (whether generally or in a particular instance);
(b) where
the patient lacks capacity to give or refuse consent, the responsible medical
officer considers that it is not in the patient’s best interests to
disclose such details; or
(c) in
any other case, the responsible medical officer considers that disclosure of
such details would be likely to cause serious harm to the patient or to any
other person.
(4) Where
one of the conditions in paragraph (3) is satisfied, the responsible
medical officer shall inform the nearest person (in writing, where reasonably
practicable) that details under paragraph (1) are not provided for that
reason, identifying the particular condition which is satisfied in the case.
(5) A nearest
person is entitled to be informed of any proposed transfer of a patient under Article 26,
and of the date of such transfer.
(6) This
Article applies in addition to, and not in derogation from, any rights
otherwise conferred on a nearest person by this Law or any other enactment.
PART 3
APPROVED ESTABLISHMENTS: ADMISSIONS FOR
ASSESSMENT, TREATMENT, ETC.
14 Voluntary
admissions
(1) If
a patient requires or wishes to receive treatment, nothing in this Law shall
prevent the patient –
(a) from
being admitted to any approved establishment for treatment in pursuance of
arrangements made for that purpose, without an admission application being made
under Article 18; or
(b) from
remaining in the establishment, with the consent of the responsible medical
officer, after ceasing to be liable to be detained.
(2) Where
a patient aged 16 years or over, who has capacity to do so, consents to
the making of arrangements such as are mentioned in paragraph (1), those
arrangements may be made, carried out and determined on the basis of that
consent, even though there are one or more persons having parental
responsibility for that patient.
(3) Where
a patient aged 16 years or over, who has capacity to give consent, does
not consent to the making of arrangements such as are mentioned in paragraph (1),
those arrangements may not be made, carried out or determined on the basis of
consent given by a person who has parental responsibility for that patient.
15 Emergency admissions
(1) This
Article applies in a case where a patient –
(a) is
brought to, or presents himself or herself at, an approved establishment; or
(b) has
been admitted to an approved establishment under arrangements such as are
mentioned in Article 14(1)(a), but no longer consents to remain.
(2) Where
this Article applies and, in the opinion of an approved practitioner, there is
an urgent necessity for the patient to be admitted for assessment on the
grounds that –
(a) it
is likely that the patient is suffering from mental disorder; and
(b) allowing
the patient to remain at liberty would endanger either the patient’s
safety or that of other persons,
the approved practitioner may authorize immediate admission of the
patient, and the patient may be detained for a period not exceeding the time
limits in paragraph (4).
(3) For
the purposes of paragraph (2), there is no urgent necessity where an application
for assessment or treatment authorization under Article 21 or 22
could be made without undue delay.
(4) Authorization
of detention under this Article shall expire –
(a) at the
end of the period of 72 hours beginning with the time when the opinion
mentioned in paragraph (2) is formed;
(b) when,
in the opinion of an approved practitioner, the grounds in paragraph (2)
no longer apply in respect of the patient; or
(c) when
the patient is admitted for assessment or treatment under Article 21 or 22,
whichever is the first to occur.
(5) Authorization
under paragraph (2) and the approved practitioner’s opinion under paragraph (4)(b)
shall be recorded in writing, and a copy of the authorization shall be sent to
the Minister, as soon as practicable.
16 Approved practitioners
(1) A registered
medical practitioner may be approved by the Minister under this Article where
the Minister is satisfied, on the production of such evidence as may be prescribed,
that the practitioner has sufficient experience and training in the field of
mental health and in the operation of legislation relating to mental health.
(2) Approval
of a person under this Article may be granted upon such terms and conditions as
the Minister thinks fit, and the approval may be revoked and any terms or
conditions upon which it is granted may be varied by the Minister.
17 Detention
by nurse
(1) This
Article applies where –
(a) a
patient (other than a patient already liable to be detained under this Part) is
receiving treatment for mental disorder as an in-patient in an approved
establishment; and
(b) it
appears to a registered nurse that –
(i) the patient is
suffering from a mental disorder,
(ii) to allow the
patient to be at liberty would endanger the patient’s safety or the
safety of other persons, and
(iii) it is not practicable
to secure the immediate attendance of an approved practitioner.
(2) Where
this Article applies –
(a) the
nurse must make a record in writing of the matters in paragraph (1)(b);
and
(b) subject
to paragraph (3), the patient may be detained in the approved
establishment for a period of no longer than 6 hours beginning at the time
the record is made.
(3) If
an approved practitioner attends the patient during the final hour of the
period mentioned in paragraph (2)(b), the patient may be detained for a further
period of no longer than one hour beginning at the time of that attendance.
(4) A
nurse who makes a record under paragraph (2) must deliver that record as
soon as possible after making it to the managers of the approved establishment.
(5) For
the purposes of this Article, “registered nurse” means a person
registered as a nurse under the Health Care (Registration) (Jersey) Law 1995[4].
18 Applications
for admission of patient: general requirements
(1) An
application for the admission of a patient on the grounds set out in Article 21
or 22 must be made in writing to the Minister and in accordance with this
Article and Article 19.
(2) An
application under this Article (an “admission application”) must –
(a) be
made by an authorized officer –
(i) who has
personally seen the patient within the period of 7 days ending with the
date of the application, and
(ii) following consultation
with the patient’s nearest person, unless such consultation is not
reasonably practicable or would involve unreasonable delay;
(b) contain
a statement that, in the opinion of each of the practitioners making
recommendations as required by paragraph (3), the grounds for admission
stated in Article 21(1) or 22(1) (as the case may be) are met; and
(c) be
sent by the authorized officer to the Minister as soon as practicable after the
application has been completed in accordance with this Article and Article 19.
(3) All
such applications must include, or be accompanied by, recommendations of 2
registered medical practitioners (the “medical recommendations”, as
to which further provision is made by Article 19), one of whom must be an
approved practitioner.
(4) Subject
to paragraph (5), the medical recommendations may be given either –
(a) as
separate documents, each signed by the practitioner by which it is made; or
(b) as
a joint document signed by both practitioners.
(5) Where
a form of application is prescribed, an application must be made using that
form.
(6) For
the avoidance of doubt, an admission application may be made in respect of the
further detention of a patient already admitted to an approved establishment –
(a) on
a voluntary basis, under Article 14; or
(b) on
an emergency basis, under Article 15.
19 Medical
recommendations: further requirements
(1) Medical
recommendations must –
(a) be
given by practitioners who have personally examined the patient either jointly
or, if separately, at an interval of not more than 5 days; and
(b) be
signed, by those giving them, on or before the date of the application to which
they relate.
(2) An
approved practitioner giving medical recommendations should, where practicable,
have previous acquaintance with the patient in relation to whom the
recommendations are made (but where both practitioners giving the
recommendations are approved practitioners, this requirement shall apply only
to one of them).
(3) Subject
to paragraph (4), medical recommendations may not be given by –
(a) the
authorized officer making the application under Article 18;
(b) a
partner of, or person employed by, the applicant or a practitioner by whom
medical recommendations are given for the purposes of the same application;
(c) a
person who receives or has an interest in the receipt of any payments made for
maintenance of the patient;
(d) a
relative of the patient or of any person mentioned in sub-paragraphs (a)
to (c) (and relationship for this purpose includes relationship of the
half-blood).
20 Effect
of admission application
(1) An admission
application which is made in accordance with Articles 18 and 19 shall be
sufficient authority, at any time within the period of 72 hours beginning
with the time at which the application is made –
(a) for
the applicant, or any person authorized by the applicant, to take the patient
and convey him or her to an approved establishment; and
(b) provided
that the requirements of paragraph (2) are fulfilled, for the managers of
the approved establishment (“M” in this Part) to admit the patient and
detain him or her in the approved establishment for a period of no longer than
one week beginning with the date of admission (the “initial
period”).
(2) A
copy of the admission application must be provided to M at the time when the
patient is admitted under paragraph (1)(b), and if M is satisfied that –
(a) the
admission application appears to have been duly made in accordance with Articles 18
and 19; and
(b) the
admission is within the period of 72 hours mentioned in paragraph (1),
M must, as soon as reasonably practicable and in any event no later
than 24 hours before the end of the initial period, give notice in writing
to the Minister that the patient to whom the admission application relates has
been admitted to the approved establishment.
(3) An
admission application may be acted upon under paragraphs (1) and (2)
without further proof of the signature or qualification of the applicant or of
any person making medical recommendations, or of any matter of fact or opinion
stated in the application.
(4) Following
receipt of notice under paragraph (2) and within the initial period, the
Minister must –
(a) confirm
in writing to M that the admission application has been duly made; and
(b) authorize
the admission and further detention of the patient –
(i) for assessment
under Article 21, or
(ii) for treatment
under Article 22,
as the case may be.
(5) Admission
and detention under this Article is subject to the rights conferred on a patient
by Article 50(1).
(6) For
the avoidance of doubt –
(a) if
M is not satisfied as provided by paragraph (2); or
(b) the
Minister’s authorization under paragraph (4) is not received by M
within the initial period,
M must release the patient from detention.
21 Assessment authorization
(1) An
application for admission of a patient for assessment may be made on the
grounds that –
(a) the
patient appears to be suffering from mental disorder of a nature or degree
which warrants the detention of the patient in an approved establishment, with
or without treatment, for at least a limited period; and
(b) it
is necessary –
(i) in the interests
of the patient’s health or safety, or
(ii) for the
protection of other persons,
that the patient should be so detained.
(2) Where
the Minister gives an authorization under Article 20(4)(b)(i) (an
“assessment authorization”) –
(a) subject
to paragraph (4), the patient may be detained in the approved
establishment for a specified period of no longer than 28 days beginning
with the date on which the patient is admitted; and
(b) during
such detention the patient may be provided with any appropriate and lawful treatment.
(3) An
assessment authorization may not be renewed.
(4) Where
the admission application relates to a patient who was first admitted under Article 14
or 15, the period mentioned in sub-paragraph (2)(a) shall begin with the
day on which the admission application is received by M.
(5) Paragraph (2)
is subject to the rights conferred on a patient by Article 50(1).
22 Treatment authorization
(1) An
application for admission of a patient for treatment may be made on the grounds
that –
(a) the
patient appears to be suffering from mental disorder of a nature or degree
which warrants the detention of the patient in an approved establishment for
treatment; and
(b) it
is necessary –
(i) in the interests
of the patient’s health or safety, or
(ii) for the protection
of other persons,
that the patient should be so detained.
(2) Where
the Minister gives an authorization under Article 20(4)(b)(ii) (a “treatment
authorization”) –
(a) the
patient may be detained in the approved establishment for a period of no longer
than 6 months beginning with the date on which the patient is admitted;
and
(b) during
such detention the patient may be provided with any appropriate and lawful
treatment.
(3) A
treatment authorization may be renewed for one additional period of 6 months,
and thereafter for further periods of 12 months, in accordance with paragraph (4).
(4) Within
the period of 2 months immediately preceding the day on which the
patient’s liability to detention ceases, the responsible medical officer
must examine the patient and make a report to the Minister recommending –
(a) the
renewal of the treatment authorization, if it appears to the responsible
medical officer that it is necessary –
(i) in the interests
of the patient’s health or safety, or
(ii) for the protection
of other persons,
that the patient should continue to be liable to be detained; or
(b) that
the treatment authorization should not be renewed.
(5) Where
a report under paragraph (4) is provided in respect of a patient, the
Minister must –
(a) inform
the patient and the patient’s nearest person of the recommendations and
the action proposed to be taken; and
(b) where
the report contains a recommendation under paragraph (4)(a), renew the treatment
authorization for the appropriate period as provided by paragraph (3).
(6) Where
the report contains a recommendation under paragraph (4)(b), the responsible
medical officer must discharge the patient.
(7) Where
the admission application relates to a patient who was first admitted under Article 14
or 15, the period mentioned in sub-paragraph (2)(a) shall begin with the
day on which the admission application is received by M.
(8) Where
a treatment authorization is renewed under paragraph (3), any additional
or further period of detention for which the renewal is granted (the “new
period”) shall begin immediately following the expiration of the previous
period of detention, and paragraphs (4) and (5) shall apply in respect of
the new period.
(9) Paragraphs
(2), (3) and (4)(a) are subject to the rights conferred on a patient by Article 50(1).
23 Rectification of applications and medical recommendations
(1) Paragraph
(2) applies in a case where it appears to the Minister or to the managers of an
approved establishment that the admission application or any related medical
recommendation is incorrect or defective.
(2) Where
this paragraph applies –
(a) the
error or defect in question may, with the consent of the Minister, be rectified
by the applicant or (as the case may be) the person who signed the recommendation;
and
(b) the
application or recommendation shall have effect (and be deemed to have had
effect) as though duly completed without the error or defect.
(3) Without
prejudice to paragraph (1), if within the initial period mentioned in Article 20(1)
it appears to the managers of an approved establishment that a medical
recommendation related to any application is insufficient to warrant the
detention of the patient, the managers may within the same period give notice
in writing of the insufficiency to the applicant and of the fact that the recommendation
shall be disregarded.
(4) Where
notice is given under paragraph (3), the application to which the
recommendation relates shall nevertheless be (and be deemed always to have
been) sufficient if –
(a) a
fresh recommendation which complies with Article 19(1) to (3) and is not
defective in any respect is provided to the managers; and
(b) that
recommendation, taken together with any other recommendation relating to the
same application, is sufficient to warrant the detention of the patient.
24 Leave of absence from approved establishment
(1) The
responsible medical officer may in accordance with this Article grant, to any
patient who is liable to be detained in an approved establishment under this
Part, leave to be absent from that establishment.
(2) The
grant of leave under paragraph (1) may be made unconditionally, or subject
to conditions –
(a) of
a kind which may be prescribed; and
(b) in
any particular case, such as the responsible medical officer may consider
necessary –
(i) in the interests
of the patient’s health or safety, or
(ii) for the
protection of other persons.
(3) Leave
of absence may be granted –
(a) on
specified occasions;
(b) for
any specified period; or
(c) (subject
to Article 25) indefinitely.
(4) Where
leave of absence is granted –
(a) for
a specified period exceeding 7 days; or
(b) for
an indefinite period,
the responsible medical officer must give notice in writing to the
Minister of the grant of leave, the period for which, and the conditions (if
any) upon which leave is granted.
(5) Subject
to paragraphs (7) and (8), where leave of absence is granted for any
specified period, that period may be extended by further leave granted in the
absence of the patient.
(6) Where
it appears to the responsible medical officer that it is necessary to do so –
(a) in
the interests of the patient’s health or safety; or
(b) for
the protection of other persons,
that officer may, on granting leave of absence, direct that the
patient shall remain in custody during the absence; and in such a case the
patient may be kept in the custody of any member of staff of the approved
establishment or of any other person authorized for that purpose by the
responsible medical officer.
(7) Where
a patient is absent on leave granted under this Article, and it appears to the
responsible medical officer that it is necessary to do so –
(a) in
the interests of the patient’s health or safety; or
(b) for
the protection of other persons,
that officer may (subject to paragraph (9) and to the rights
conferred on a patient by Article 50(1)), by notice in writing to the
patient or to the person having custody of the patient under paragraph (6),
revoke the leave of absence and recall the patient to the approved
establishment.
(8) The
responsible medical officer may from time to time vary or suspend, by notice in
writing to the patient or to the person having custody of the patient under paragraph (6),
the period for which and any conditions (other than conditions prescribed under
paragraph (2)(a)) upon which leave of absence is granted.
(9) A
patient to whom leave of absence is granted for an indefinite period shall not
be recalled under paragraph (7) after the patient has ceased to be liable
to be detained under this Part.
(10) For the
avoidance of doubt and without derogation from the generality of the power
conferred by paragraph (2)(a), conditions to be prescribed under that sub-paragraph
may include conditions as to the examination of a patient or the review of a
patient’s treatment, at such times or intervals as may be prescribed, by the
responsible medical officer (or, where the patient’s treatment is of a
kind requiring consent under Part 6, by the responsible medical officer
and a SOAD).
25 Return of patients absent without leave
(1) This
Article applies where a patient who is for the time being liable to be detained
in an approved establishment –
(a) absents
himself or herself from the establishment without leave granted under Article 24;
or
(b) fails
to return to the establishment –
(i) on any occasion,
or at the expiration of any period, for which leave was granted to the patient
under that Article, or
(ii) upon being
recalled under paragraph (7) of that Article.
(2) Where
this Article applies the patient may be taken into custody and returned to the
establishment by –
(a) the
managers of that establishment or any member of staff of the establishment authorized
for that purpose by the managers; or
(b) a
police officer.
(3) Detention
of the patient in custody or following return to an approved establishment
under paragraph (2) is subject to the rights conferred on a patient under Article 50(1).
(4) A
patient shall not be taken into custody under this Article after the expiration
of the period of 6 months beginning with the first day of the
patient’s absence without leave, and a patient who has not returned to
the establishment nor been taken into custody within that period shall, at the
expiration of that period, cease to be liable to be detained.
26 Transfer
of patients
(1) The
Minister may arrange for the transfer of a patient liable to be detained under
this Part from one approved establishment to another.
(2) Where
a patient is transferred pursuant to arrangements made under paragraph (1),
this Part shall apply to the patient as if –
(a) the
admission application by virtue of which the patient was liable to be detained were
an application for admission to the approved establishment to which the patient
is transferred; and
(b) the
patient had been admitted to that establishment at the time when the patient
was originally admitted under the admission application.
27 Discharge of patients
(1) A
responsible medical officer may, in accordance with this Article and having
regard to the care and supervision which would be available to the patient if
discharged, direct the discharge of a patient from the approved establishment
in which the patient is liable to be detained.
(2) The
responsible medical officer must direct the discharge of the patient unless –
(a) the
exception in paragraph (6) applies; or
(b) having
regard to the care or supervision which would be available to the patient if
discharged, the responsible medical officer is satisfied that –
(i) the patient is
suffering from a mental disorder of a nature or degree which warrants continued
detention and treatment, and
(ii) it is necessary
for the patient to be detained in the interests of the patient’s health
or safety, or for the protection of other persons.
(3) Where
a direction for discharge is duly made under this Article, any assessment
authorization or treatment authorization relating to the patient in question
shall cease to have effect.
(4) Notice
in writing of the discharge must be given by the responsible medical officer to –
(a) the
patient;
(b) the
patient’s nearest person;
(c) the
Minister; and
(d) the
managers of the approved establishment,
and where a form is prescribed for the purpose, must be given in
that form.
(5) A
patient’s nearest person may give notice in writing to the responsible
medical officer requesting the exercise of the power to discharge the patient,
and where such notice is given –
(a) the
responsible medical officer shall consider the request, unless another such request
from the same nearest person has been received by that officer within the
period of 30 days ending on the date of receipt of the notice; and
(b) if
the responsible medical officer decides not to discharge the patient, reasons
for that decision must be given in writing to the nearest person.
(6) A direction
for discharge of a patient detained pursuant to the provisions of Part 9
may be made under this Article, except that no such direction shall be made for
discharge of a defendant in respect of whom a treatment order under Article 65
is made subject to special restrictions under Article 68.
28 Special
provisions: patient absent without leave
(1) Paragraph
(2) applies where a patient is absent without leave –
(a) on
the day on which (apart from this Article) the patient would cease to be liable
to be detained under this Part or to be subject to guardianship under Part 4;
or
(b) within
the period of one week ending on that day.
(2) Where
this paragraph applies, the patient shall continue to be liable to be detained,
or (as the case may be) subject to guardianship under Part 4, until the
expiration of the period of one week beginning with the day on which the patient
is returned under Article 25 or 31, or returns to the approved
establishment or to the place where (under the terms of his or her
guardianship) the patient ought to be.
(3) Where
the period for which a patient is liable to be detained or is subject to
guardianship is extended by the application of paragraph (2), any examination
or report under Article 22(4) or 33(4) may be made within that period as
so extended.
(4) Paragraph
(5) applies where –
(a) later
than the end of the period of 28 days beginning with the first day on
which a patient is absent without leave; but
(b) before
the end of the period of 6 months beginning with that day,
the patient is returned under Article 25 or 31, or returns to
the approved establishment or to the place where (under the terms of his or her
guardianship) the patient ought to be.
(5) Where
this paragraph applies, an approved practitioner must, within the period of one
week beginning with the day of the patient’s return –
(a) examine
the patient and, if the patient is a patient liable to be detained, consult
such other persons concerned with the patient’s care or treatment as may
be appropriate; and
(b) if
it appears to the responsible medical officer that the conditions in paragraph (6)
are fulfilled, make a report in writing to that effect to M and to the Minister.
(6) The
conditions mentioned in paragraph (5)(b) are that –
(a) the
patient appears to be suffering from mental disorder of a nature or degree
which warrants –
(i) the detention of
the patient in an approved establishment for treatment, or
(ii) the reception of
the patient into guardianship; and
(b) it
is necessary –
(i) in the interests
of the patient’s health or safety, or
(ii) for the
protection of other persons,
that the patient should be so detained or received.
(7) Where
the patient would (apart from paragraphs (1) to (3)) have ceased to be
liable to be detained or subject to guardianship on, before, or within the
period of 2 months beginning with, the day on which the report is provided
under paragraph (5)(b) –
(a) the
report shall renew any existing authorization under Article 21, 22 or 30,
as the case may be; and
(b) that
renewal shall take effect from the day on which the existing authorization
would (but for this paragraph) have expired,
for a period of no longer than 6 months beginning with that day
(and in the case of an authorization under Article 22, the provisions of Article 22(3)
to (9) shall apply afresh as though the report were a treatment authorization
under that Article).
part 4
guardianship
29 Application for guardianship
(1) An
application for the reception of a patient into guardianship (a
“guardianship application”) must be made in writing to the Minister
and in accordance with this Article.
(2) All
such applications must –
(a) be
made by an authorized officer –
(i) who has
personally seen the patient within the period of 7 days ending with the
date of the application, and
(ii) following consultation
with the patient’s nearest person, unless such consultation is not
reasonably practicable or would involve unreasonable delay;
and
(b) contain
a statement that, in the opinion of each of the persons required by paragraph (4),
the grounds stated in paragraph (3) are met.
(3) The
grounds mentioned in paragraph (2)(b) are that –
(a) the
patient appears to be suffering from mental disorder of a nature or degree
which warrants the reception of the patient into guardianship; and
(b) it
is necessary for the patient to be received into guardianship –
(i) in the interests
of the patient’s welfare, or
(ii) for the
protection of other persons.
(4) All
such applications must include, or be accompanied by, recommendations of 2
registered medical practitioners (the “medical recommendations”, as
to which Article 19 shall apply as if the application were an application
under Part 3), one of whom must be an approved practitioner.
(5) The
medical recommendations may be given either –
(a) as
separate documents, each signed by the practitioner by which it is made; or
(b) as
a joint recommendation signed by both practitioners.
(6) A
guardianship application shall be of no effect unless –
(a) it
is received by the Minister within the period of 7 days beginning with the
date on which the patient was last examined by a registered medical
practitioner with a view to making a medical recommendation; and
(b) it
appears to the Minister to be duly made under this Article.
(7) Where
the guardianship application names a person other than the Minister as
guardian, it must also include or be accompanied by a statement that the person
so named consents to act as guardian in relation to the patient.
(8) Where
a form of application under this Article is prescribed, an application must be
made using that form.
30 Effect of application for guardianship
(1) A
guardianship application authorized by the Minister (a “guardianship
authorization”) shall be sufficient authority for the reception of the
patient into the guardianship of the person named as guardian in the
application.
(2) A
guardianship authorization shall confer on the person named as guardian, to the
exclusion of any other person, the power –
(a) subject
to paragraph (3), to require the patient to reside at a place specified by
the guardian;
(b) to
require the patient to attend at times and places so specified for the purpose
of treatment, occupation, education or training;
(c) to
require access to the patient to be given, at any place where the patient is
residing, to any registered medical practitioner, authorized officer or other
person so specified.
(3) Paragraphs (1)
and (2) are subject to the rights conferred on a patient by Article 50(1).
(4) For
the avoidance of doubt the words “the exclusion of any other
person” in paragraph (2) shall not have effect, where the Minister
is the person named as guardian, to exclude the exercise of powers under this
Article by a person to whom the Minister has lawfully delegated those powers.
(5) Where
the person named as guardian is the Minister, the Minister may (if considering
that it is justifiable in the circumstances to do so) require that the patient –
(a) must
reside –
(i) in an approved
establishment, or
(ii) with such person
as the Minister may think fit;
(b) must
attend training specified by the Minister at such place and times or for such
periods as may be so specified.
(6) The
States may by Regulations make provision for –
(a) imposing
on guardians, in cases where the person named as guardian is not the Minister,
such duties as may be considered necessary or expedient in the interests of
patients subject to guardianship; and
(b) the
creation of offences, punishable by fines of up to level 3 on the standard
scale, for breach of such provision.
(7) Where,
at any time after a patient is received into guardianship, the application or
any related medical recommendation is found to be in any respect incorrect or
defective –
(a) the
error or defect in question may, with the consent of the Minister, be rectified
by the applicant or (as the case may be) the person who signed the
recommendation; and
(b) the
application or recommendation shall have effect (and be deemed to have had
effect) as though made originally without the error or defect.
(8) Where
a patient is received into guardianship, any previous application under
Part 3 or any previous guardianship application in respect of the same
patient shall cease to have effect.
31 Powers
of re-taking into custody
(1) Where
a patient who is subject to guardianship and to a residence requirement under Article 30(2)(a)
or (5)(a)(i) absents himself or herself without the leave of the guardian from
the place at which he or she is required to reside, the patient may be taken
into custody and returned to that place by –
(a) the
guardian;
(b) a
person authorized in writing by the guardian to do so;
(c) a
police officer;
(d) an
authorized officer; or
(e) where
the place is an approved establishment, the managers of that establishment or
any member of staff of the establishment authorized by the managers for that
purpose.
(2) A
patient shall not be taken into custody under this Article after the expiration
of the period of 6 months beginning with the first day of the
patient’s absence without leave, and a patient who has not returned nor
been taken into custody within that period shall, at the expiration of that
period, cease to be subject to guardianship.
32 Transfer
of guardianship and substitution of guardian
(1) The
Minister may arrange for the transfer of a patient received into guardianship
under this Part from the guardianship of any person (“G1”) into the
guardianship of any other person (“G2”), including the Minister.
(2) The
Minister must arrange for the transfer of a patient under paragraph (1)
where it appears to the Minister that any person appointed as a guardian under
this Part has performed that function negligently or in a manner contrary to
the interests of the patient.
(3) Where
the power in paragraph (1) is exercised, G2 shall be treated at all times
and for all the purposes of this Part as if G2 (and not G1) had been the person
named in the guardianship application as a result of which the patient was
received into guardianship.
(4) If
a person appointed as a guardian under this Part becomes incapacitated by
illness or any other cause from so acting –
(a) the
Minister or any other person approved for the purpose may act as guardian of
the patient concerned during the guardian’s incapacity; and
(b) paragraph (3)
shall apply as if the person acting as guardian under this paragraph were G2.
(5) The
States may by Regulations make further provision as to the transfer of patients –
(a) between
guardianship and liability to detention in an approved establishment; and
(b) between
liability to detention in an approved establishment and guardianship.
(6) Without
derogation from the general power conferred by paragraph (5), Regulations
under that paragraph may in particular –
(a) prescribe
the circumstances in which, and the conditions subject to which, transfers
under those Regulations may take place;
(b) make
provision as to the application of this Part, and of Part 3, in respect of
patients transferred under those Regulations; and
(c) make
provision regulating the conveyance of patients transferred under those
Regulations.
33 Duration
of guardianship
(1) A
guardianship authorization has effect for a period of 6 months beginning
with the date on which the application for guardianship is authorized under Article 30(1).
(2) A
guardianship authorization may be renewed in the manner provided by paragraphs (4)
and (5) –
(a) for
one further period of 6 months beginning immediately after the last day of
the period mentioned in paragraph (1); and
(b) thereafter
in the same manner for successive periods of 12 months.
(3) A
patient who is received into guardianship may apply to the Tribunal, once
within each of the periods mentioned in paragraphs (1) and (2), for a
direction that the guardianship authorization be terminated.
(4) Within
the period of 2 months ending on the day on which, were it not for any
renewal under this Article, the guardianship authorization would cease to have
effect, the responsible medical officer must examine the patient and make a report
to the Minister, recommending –
(a) where
it appears to the responsible medical officer that in the interests of the
patient’s welfare or for the protection of other persons, the patient
should remain under guardianship, the renewal of the guardianship
authorization; or
(b) the
discharge of the patient from guardianship.
(5) Where
a report under paragraph (4) is provided in respect of a patient, the
Minister must inform the patient and the patient’s nearest person of the
recommendations and the action proposed to be taken and –
(a) where
the report contains a recommendation under paragraph (4)(a), the Minister
must renew the guardianship authorization for the appropriate period as
provided by paragraph (2); or
(b) where
the report contains a recommendation under paragraph (4)(b), the Minister
must discharge the patient.
PART 5
OTHER FORMS OF LEGAL CUSTODY: PLACE OF
SAFETY, ETC.
34 Interpretation
and application of Part 5
(1) In
this Part –
“convey” includes any other expression denoting removal
from one place to another;
“place of safety” means –
(a) an
approved establishment;
(b) in
a case where, for the purpose of preventing harm to the person in question or
to any other person, a police station is the most secure or suitable place, a
police station; and
(c) any
other place –
(i) which may be
designated as such for the purpose by the Minister, or
(ii) the occupier of
which consents to receive a person for a specified temporary period;
“premises” includes any vessel, vehicle, aircraft or
hovercraft.
(2) Any
person required or authorized by virtue of this Law to be conveyed to any place
or to be kept in custody or detained in a place of safety, is deemed to be in legal
custody while being so conveyed, kept or detained.
(3) Nothing
in this Part shall prevent a person detained under Article 35 or 36 from being
conveyed from one place of safety to another.
35 Powers
of search, entry and removal of persons to place of safety
(1) Paragraph (2)
applies where it appears to the Bailiff, on information given on oath by an
authorized officer, that there is reasonable cause to suspect that a person believed
to be suffering from mental disorder –
(a) has
been, or is being, ill-treated, neglected or kept otherwise than under detention
or custody as provided by this Law, in any place; or
(b) being
unable to care for himself or herself, is living alone in any place.
(2) Where
this paragraph applies, and for the purpose stated in paragraph (3), the
Bailiff may issue a warrant authorizing –
(a) an
authorized officer; or
(b) a
person of any other category specified in the warrant,
to enter, if necessary by force, any premises specified in the
warrant and to search for and if necessary remove the person mentioned in paragraph (1)
to a place of safety.
(3) A
person may be removed to a place of safety in pursuance of a warrant issued
under paragraph (2) for the purpose of –
(a) making
an admission application in respect of the person under Part 3; or
(b) making
other arrangements for that person’s care or treatment.
(4) The
exercise of the power conferred by paragraph (3) may include, where
appropriate, assessment of the person for the purpose of an admission
application, in the place of safety or in any other premises, including the
person’s home.
(5) Paragraph (6)
applies where it appears to the Bailiff, on information given on oath by an
authorized officer, that –
(a) there
is reasonable cause to believe that a patient who is liable to be detained or
taken or retaken into custody under this Law is to be found on certain specified
premises; and
(b) admission
to the premises has been or is likely to be refused.
(6) Where
this paragraph applies, the Bailiff may issue a warrant authorizing –
(a) the
authorized officer; and
(b) any
other person named in the warrant,
to enter, if necessary by force, any premises specified in the
warrant and to search for and if necessary remove the patient to a place of
safety.
(7) In
the execution of a warrant issued under this Article, the persons authorized by
the warrant –
(a) must
be accompanied by a registered medical practitioner; and
(b) may
be accompanied by a police officer.
(8) A
person who is removed to a place of safety under this Article may be detained
there for a period not exceeding 72 hours beginning with the admission of
the person to that place.
(9) It
shall not be necessary, in any information given or warrant issued under this
Article, to name or otherwise identify the person in respect of whom the
information is given or the warrant is issued, as the case may be.
36 Urgent removal of persons found in public places
(1) Paragraph (2)
applies where a police officer finds, in any place other than a private
dwelling, a person who appears to the police officer –
(a) to
be suffering from mental disorder; and
(b) to
be in immediate need of care or control.
(2) Where
this paragraph applies, and the police officer thinks it necessary to do so in
the interests of that person or for the protection of other persons, the police
officer may remove the person to a place of safety.
(3) A
person who is removed to a place of safety under this Article may be detained
there for a period not exceeding 72 hours beginning with the admission of
the person to that place, for the purpose of making an admission application in
respect of the person under Part 3, or of making any other arrangements
for the person’s care or treatment.
37 Re-taking
of persons into custody
(1) This
Article applies in respect of persons who escape from legal custody.
(2) A
person to whom this Article applies (“A”) may be re-taken into
custody, in accordance with this Article –
(a) by the
person (“C”) who had custody of A immediately before A’s
escape;
(b) by a
police officer;
(c) by an
authorized officer;
(d) in
a case where, at the time of the escape A is a patient liable to be detained in
an approved establishment, by the managers of the establishment or a member of
staff of the establishment authorized for that purpose by the managers, as if A
were absent without leave in the terms of Article 25; or
(e) in
a case where at the time of the escape A is subject to guardianship and the
time limit imposed by Article 31(2) on re-taking such a person has not
expired, by any other person who would be entitled to take A into custody under
Article 31(1), as if A were absent without leave in the terms of that
Article.
(3) Where
A escapes while being removed to or detained in a place of safety under Article 35
or 36, A may not be re-taken after the expiry of the period –
(a) of
72 hours beginning with the time of the escape; or
(b) during
which the person is liable to be detained,
whichever expires first.
(4) Where
A escapes from custody while –
(a) being
conveyed to or from an approved establishment under Article 20(1); or
(b) in
custody or being conveyed to another place under Part 12,
this Article and Article 25 shall apply as though A were liable
to be detained in that establishment or place and, if A had not previously been
received into that establishment or place, as though A had been so received.
part 6
treatment REQUIRING CONSENT
38 Interpretation and application of Part 6
(1) Subject
to paragraph (2), this Part applies in relation to a patient liable to be
detained under this Law, except a patient liable to be detained under Article 15
or 17 or Part 4 or 5.
(2) Articles 40,
42 and 44 apply in relation to any patient, whether or not liable to be
detained under this Law.
(3) A
“second opinion approved doctor or “SOAD” means a person who –
(a) is
a registered medical practitioner;
(b) has
such training and expertise in the field of psychiatry and in the application
of mental health legislation as may be prescribed; and
(c) is
approved by the Minister for the purpose of carrying out the functions of a
SOAD.
(4) In
this Part, a reference to treatment includes reference to a plan of treatment
under which a patient is to be given (whether within a specified period or
otherwise) one or more of the types of treatment listed in Article 40(2)
or 41(2), as the case may be.
39 Treatment
not requiring consent
The consent of a patient to whom this Part applies is not required
for any treatment given to the patient for the mental disorder from which the
patient is suffering, where the treatment –
(a) is
not of a type listed in Article 40(2) or 41(2); and
(b) is
given by or under the direction of the patient’s responsible medical
officer.
40 Treatment
requiring both consent and a second opinion
(1) A treatment
of a type listed in paragraph (2) must not be given to a patient unless –
(a) the
patient has consented to the treatment; and
(b) a
SOAD has given a certificate in writing in accordance with paragraphs (3)
and (4).
(2) The
types of treatment mentioned in paragraph (1) are –
(a) any
surgical operation for destroying brain tissue or the functioning of brain
tissue;
(b) the
surgical implantation of hormones for reducing male sex drive;
(c) electro-convulsive
therapy; and
(d) such
other types of treatment as may be prescribed.
(3) A
SOAD must not give a certificate in writing as required by paragraph (1)(b)
unless the SOAD has consulted –
(a) the
patient’s responsible medical officer; and
(b) one
other person who must be an authorized officer or mental health professional
who, in either case, is or has been professionally concerned with the treatment
of the patient,
in accordance with any further provision made by a code of practice
as to such consultation.
(4) The
certificate given by the SOAD must state that, in the SOAD’s opinion and
having consulted as required by paragraph (3) –
(a) the
patient is capable of understanding the nature, purpose and likely effects of
the proposed treatment and has consented to receive it; and
(b) it
is appropriate for the treatment to be given to that patient.
41 Treatment
requiring either consent or a second opinion
(1) A
treatment of a type listed in paragraph (2) must not be given to a patient
unless either –
(a) the
patient has consented to the treatment, and –
(i) the
patient’s responsible medical officer, or
(ii) any other
approved practitioner,
has certified in writing that the patient is capable of
understanding the nature, purpose and likely effects of the proposed treatment
and has consented to receive it;
or
(b) a
SOAD has given a certificate in writing in accordance with paragraphs (4)
and (5).
(2) The
types of treatment mentioned in paragraph (1) are –
(a) such
types as may be prescribed; and
(b) the
administration of medicine to a patient –
(i) by any means
(other than one set out in Article 40(2) or prescribed under sub-paragraph (a)),
(ii) at any time
during a period for which the patient is liable to be detained, if 3 months
or more have elapsed since the first occasion in that period when medicine was
administered to the patient by any means,
for the purpose of treating the patient’s mental disorder.
(3) The
number of months in paragraph (2)(b)(ii) may be amended by Order of the
Minister.
(4) A
SOAD must not give a certificate in writing as required by paragraph (1)(b)
unless the SOAD has consulted –
(a) the
patient’s responsible medical officer; and
(b) one
other person who must be an authorized officer or mental health professional
who, in either case, is or has been responsible for the treatment of the
patient,
in accordance with any further provision made by a code of practice
as to such consultation.
(5) The
certificate given by the SOAD must state that, in the SOAD’s opinion and
having consulted as required by paragraph (4) –
(a) the
patient –
(i) is not capable of
understanding the nature, purpose and likely effects of the proposed treatment,
or
(ii) has not consented
to receive it; but
(b) having
regard to the likelihood of the treatment alleviating or preventing a
deterioration of the patient’s condition, the treatment should be given
to that patient.
42 Withdrawal
of consent
(1) A
patient who has consented to treatment under Article 40 or 41 may withdraw
that consent at any time, whether or not the treatment has been completed.
(2) Following
withdrawal of consent, Articles 40 and 41 shall apply afresh to any
treatment remaining to be given, as if that treatment were a separate
treatment.
43 Duration
of certificates
(1) A
certificate given as required by Article 40(1)(b) or 41(1) shall cease to
have effect at the end of the period of 6 months beginning with the date
of the certificate, or such shorter period as may be specified by the SOAD in
the certificate.
(2) Once
a certificate has so ceased to have effect, Articles 40 and 41 shall apply
afresh in relation to any treatment of a type listed in those Articles, as if
no certificate had previously been given.
44 Emergency
treatment
(1) A
requirement for consent imposed by Article 40 or 41 shall not apply in
relation to any treatment which –
(a) is
immediately necessary to save a patient’s life;
(b) is
not irreversible and is immediately necessary to prevent a serious
deterioration of a patient’s condition;
(c) is
not irreversible or hazardous and is immediately necessary to alleviate serious
suffering by the patient; or
(d) is not
irreversible or hazardous, is immediately necessary and represents the minimum
interference necessary to prevent a patient behaving violently or being a
danger to himself or herself or to others.
(2) Articles 41
and 43(2) shall not apply to preclude continuation of any treatment, pending
compliance with Article 40 or 41, if the responsible medical officer
considers that discontinuity of treatment would cause serious suffering to a
patient.
(3) For
the purposes of this Article, treatment is “irreversible” if it has
unfavourable and permanent physical or psychological consequences, and
“hazardous” if it entails significant physical hazard.
45 Examinations, records etc. for the purposes of this Part
(1) An
approved practitioner or SOAD may, for the purpose of exercising functions
under this Part, at any reasonable time –
(a) visit,
interview or examine a patient in private; and
(b) require
the production of, and inspect, records relating to the treatment of that
patient.
(2) A certificate
given for the purposes of this Part shall be in such form as may be prescribed,
and an approved practitioner or SOAD giving such a certificate must –
(a) keep
a record of the certificate, including the date of its issue; and
(b) provide
a copy of the certificate to the patient’s responsible medical officer.
46 Regulations
as to consent to treatment
(1) The
States may by Regulations make further provision as to the application of this
Part.
(2) In
particular and without derogation from the generality of the power conferred by
paragraph (1) –
(a) provision
may be made by such Regulations as to –
(i) the
administration of electro-convulsive therapy or of such other types of
treatment as may be specified, and
(ii) the circumstances
in which any treatment may be administered to a child or to a person incapable
of giving consent;
and
(b) such
Regulations may disapply Article 6(3) of the Capacity Law.
part 7
mental health review tribunal
47 Establishment
of Panel and appointment of qualified persons
(1) The
Bailiff shall appoint (in accordance with this Article) and maintain (in
accordance with Article 48) a Mental Health Review Tribunal Panel (the
“Panel”) from which the members of a Mental Health Review Tribunal
convened to carry out any of the Tribunal’s functions shall be drawn (in
accordance with Article 49 and the Schedule).
(2) The
Panel shall consist of such number of qualified persons as in the
Bailiff’s opinion is necessary for the purpose of carrying out the
Tribunal’s functions under this Part and the Schedule.
(3) For
the purposes of paragraph (2), a qualified person is one who fulfils the requirements
of paragraph (4) and –
(a) is
legally qualified by virtue of being an advocate or solicitor of the Royal
Court of not less than 5 years’ standing (a “legal
member”);
(b) is
medically qualified by virtue of being an approved practitioner or a
practitioner of equivalent experience and qualification registered as such in a
jurisdiction other than Jersey (a “medical member”); or
(c) is
otherwise qualified by virtue of his or her experience in administration or
application of mental health legislation, or his or her knowledge of social
services, or of such other qualification as the Bailiff considers suitable (a
“lay member”).
(4) Qualified
persons shall be persons –
(a) who,
in the Bailiff’s opinion, have sufficient experience and knowledge to
enable them to determine matters falling to be determined by the Tribunal in
the exercise of its functions; and
(b) who
are not disqualified –
(i) in the case of a
person otherwise legally qualified, by falling within any of the descriptions listed
in paragraph (5), or
(ii) in the case of a
person otherwise medically qualified or qualified as a lay member, by virtue of
being an advocate or solicitor of the Royal Court, or by falling within the
description in paragraph (5)(a) or (b).
(5) The
following are the descriptions of persons disqualified as mentioned in paragraph (4) –
(a) the
Bailiff, the Deputy Bailiff or a Jurat;
(b) any
other member of the States of Jersey;
(c) any
person holding a paid office under the Crown or the States, any employee of the
Crown or any States’ employee (as defined by Article 2 of the
Employment of States of Jersey Employees (Jersey) Law 2005[5]);
(d) any
person providing services, whether directly or indirectly, to the Minister or
the States in relation to the exercise of any function of the Minister or the
States under this Law.
(6) The
Minister shall establish and pay rates of remuneration of persons appointed
under this Article and may defray such expenses of those persons as the
Minister may determine.
(7) The
Minister may provide, from any administration of the States for which he or she
is assigned responsibility, such officers, servants, and accommodation, as the
Tribunal may reasonably require.
48 Term of office etc. of qualified persons
(1) The
Bailiff may review the constitution of the Panel and may –
(a) appoint
additional persons;
(b) re-appoint
existing qualified persons; or
(c) remove
qualified persons from office on the grounds set out in paragraph (2),
as the Bailiff thinks fit.
(2) The
Bailiff may remove from the Panel any qualified person –
(a) on
the ground of misconduct by that person; or
(b) where
that person is incapable of fulfilling the functions of a member of the
Tribunal by reason of mental disorder or physical incapability.
(3) Subject
to paragraph (2), the appointment of a qualified person shall cease on
whichever of the following occasions is the first to occur –
(a) the
appointment or election of that person to a position which would disqualify him
or her under Article 47(5)(a) or (b);
(b) at
midnight on 31st December in the fifth year following the year of appointment;
(c) at
midnight on 31st December immediately following the member’s 72nd
birthday;
(d) if
the person tenders his or her resignation in writing to the Bailiff;
(e) if
the person becomes bankrupt;
(f) if,
without reasonable excuse, the person absents himself or herself from a sitting
of the Tribunal at which the member is appointed to attend in accordance with
Part 1 of the Schedule.
(4) Where
there is or is discovered to have been any defect with regard to the
qualifications of a person, nothing in this Article or Article 47 shall be
taken to invalidate a decision or any proceedings of a Tribunal of which that
person is or was a member.
49 Establishment and constitution of Tribunal
(1) From
among the legal members the Bailiff shall appoint a Chairman, Vice Chairman and
such number of members as the Bailiff considers necessary properly to discharge
the functions of the Tribunal.
(2) Part 1
of the Schedule has effect with respect to the constitution and procedures of
the Tribunal.
(3) The
States may by Regulations amend Part 1 of the Schedule.
50 Principal functions of the Tribunal
(1) A
patient, a patient’s nearest person, or other applicant may apply to the
Tribunal for the review of a decision directly affecting the patient and of a
kind described in the table in Part 2 of the Schedule.
(2) The
principal functions of the Tribunal shall be to determine –
(a) applications
made under this Article and in accordance with Part 2 of the Schedule; and
(b) references
made by the Minister or the Attorney General under Article 51.
(3) The
Tribunal shall also discharge such other functions as are conferred upon it by
or under this Law or by any other enactment.
(4) In paragraph (1)
“applicant” includes any person (not being a patient or the
patient’s nearest person) mentioned in the second column of the table in
Part 2 of the Schedule.
51 Reference
to Tribunal by Minister or Attorney General
Where a patient is liable to be detained under Part 3 or is
subject to guardianship under Part 4, the Minister or the Attorney General
may, if he or she thinks fit, refer that patient’s case to the Tribunal
and the Tribunal shall deal with any such reference as if it were an
application by the patient made under Article 50.
52 Directions
which may be given by the Tribunal
(1) Where
the application before the Tribunal concerns a patient admitted for assessment,
the Tribunal may in any case direct that the patient be discharged, and shall
so direct unless the Tribunal is satisfied that –
(a) the
patient is then suffering from mental disorder of a nature or degree which
warrants the patient’s detention in an approved establishment for
assessment (or for assessment followed by treatment) for at least a limited period;
and
(b) it
is necessary that the patient should continue to be detained –
(i) in the interests
of the patient’s health or safety, or
(ii) for the
protection of other persons.
(2) Where
the application before the Tribunal concerns a patient admitted for treatment,
the Tribunal may in any case direct that the patient be discharged, and shall
so direct unless the Tribunal is satisfied that –
(a) the
patient is then suffering from mental disorder of a nature or degree which
warrants the patient’s detention in an approved establishment for
treatment; and
(b) it
is necessary that the patient should continue to be detained –
(i) in the interests
of the patient’s health or safety, or
(ii) for the
protection of other persons.
(3) Where
the application before the Tribunal concerns a patient subject to guardianship,
the Tribunal may in any case direct that the patient be discharged, and shall
so direct unless the Tribunal is satisfied that –
(a) the
patient is then suffering from mental disorder of a nature or degree which
warrants the reception of the patient into guardianship; and
(b) it
is necessary for the patient to continue to be subject to guardianship –
(i) for the
patient’s welfare, or
(ii) for the
protection of other persons.
(4) In
the exercise of its powers under paragraphs (1) to (3) the Tribunal may
direct the discharge of a patient on a future date specified in the direction.
53 Visiting and examination of patients
(1) A
person entitled under Article 50 or 51 to apply to the Tribunal may
authorize a registered medical practitioner to visit the patient at any
reasonable time and examine the patient in private, for the purpose of –
(a) advising
whether an application to the Tribunal should be made by or in respect of the
patient; or
(b) providing
information as to the patient’s condition for the purposes of such an
application.
(2) A
registered medical practitioner authorized under paragraph (1) may require
the production of and inspect any documents constituting, or alleged to
constitute, the authorization for detention of the patient under Part 2,
and any records or other documents relating to the patient’s treatment.
54 Appeals from Tribunal
(1) A
person aggrieved by a decision of the Tribunal may appeal to the Court on a point
of law.
(2) The
power to make rules of court under the Royal Court (Jersey) Law 1948[6] shall extend to making rules
for the purpose of the conduct of, and proceedings in, appeals under paragraph (1).
(3) On
an appeal under paragraph (1) the Court may –
(a) quash
the decision of the Tribunal;
(b) affirm
the decision of the Tribunal;
(c) give
any direction which the Tribunal has power to give; or
(d) refer
the matter back to the Tribunal for reconsideration.
(4) No
decision of the Tribunal shall be invalidated solely by reason of procedural
irregularity, unless that irregularity was such as to prevent a party to the
appeal from presenting his or her case fairly before the Tribunal.
PART 8
CRIMINAL JUSTICE: INCAPACITY OF DEFENDANT
55 Application
and interpretation of Part 8
(1) This
Part applies where in any proceedings, whether on accusation or trial, it
appears to the court that a person charged with any act (the
“defendant”) is, because of –
(a) mental
disorder; or
(b) inability
to communicate,
incapable of participating effectively in the proceedings, and any
reference in this Part to incapacity shall be construed accordingly.
(2) For
the purposes of this Part –
(a) a
reference to the “court” is to whichever court has jurisdiction, in
a particular case, to try the proceedings in question, and includes (for the
avoidance of doubt) the Magistrate’s Court, the Youth Court, or the Royal
Court, as the case may be;
(b) a
reference to “medical evidence” is to the evidence, in relation to
a particular matter, of at least 2 registered medical practitioners who, in the
opinion of the court, have appropriate experience in the diagnosis or treatment
of such a matter;
(c) “participating
effectively” includes, but is not limited to –
(i) entering a plea,
and
(ii) understanding the
nature and significance of the proceedings or any stage of the proceedings; and
(d) “special
measures” may include, but are not limited to, the provision of
translators or interpreters or of mechanical or electronic aids to hearing or
understanding.
56 Power
to adjourn proceedings where defendant apparently incapable
(1) Where
it appears to the court that a defendant is incapable of participating
effectively in proceedings, the court may adjourn the proceedings to enable determination
of the issue of the defendant’s incapacity.
(2) Subject
to paragraph (3), the determination of that issue –
(a) shall
be held as soon as possible and at such time and place as the court may direct;
and
(b) may
be held in the absence of the defendant if, having regard to the medical
evidence, it is impracticable or inappropriate to bring the defendant before
the court.
(3) Where
the court considers that it is expedient and in the interests of the defendant
to do so, the court may postpone consideration of the issue of incapacity until
any time up to the opening of the case for the defence (and if, before the issue
falls to be determined, the defendant is acquitted, the issue need not be
determined).
57 Determining
issue of incapacity
(1) The
court determining an issue as to the defendant’s incapacity shall have
regard (so far as each of the following factors is relevant in the particular
case) to the ability of the defendant –
(a) to
understand the nature of the proceedings so as to be able to instruct his or
her lawyer and to make a proper defence;
(b) to
understand the nature and substance of the evidence;
(c) to
give evidence on his or her own behalf;
(d) to
make rational decisions in relation to his or her participation in the
proceedings (including entering any plea) which reflect true and informed
choices on his or her part.
(2) The
issue as to the defendant’s incapacity shall be determined on the balance
of probabilities.
(3) For
the purpose of determining the issue of incapacity –
(a) the
court must obtain, and have regard to, medical evidence on that issue; and
(b) the
court shall have all such powers to make orders in respect of the defendant under
this Part as it has in respect of a defendant under Articles 61(1) and
62(1).
(4) Where
the court determines that the defendant is incapable but considers that the
defendant’s incapacity might be alleviated by special measures to enable
the defendant to participate effectively in the proceedings –
(a) the
court shall have regard to whether it is practicable to put in place such
special measures; and
(b) if
the court considers it is practicable to do so, shall direct that such special
measures are put in place.
58 Result
of finding of incapacity
(1) This
Article applies where, on the hearing of an issue as to a defendant’s incapacity,
the court determines that the defendant is incapable (even if special measures were
to be put in place) of participating effectively in proceedings.
(2) Where
this Article applies, the court –
(a) may
adjourn the proceedings for a further specified period of no more than 6 months,
for the purpose of enabling the defendant to receive treatment; and
(b) if
it does so, may do anything which it has power to do under Article 63.
(3) Where
this Article applies and –
(a) the
court does not adjourn the proceedings under paragraph (2); but
(b) the
court is satisfied, having regard to the medical evidence, that the defendant
is and will remain (so far as reasonably foreseeable) incapable of
participating effectively in proceedings,
the proceedings adjourned under Article 56(1) shall not proceed
further and the court may deal with the defendant only –
(i) by
releasing him or her unconditionally; or
(ii) as
provided by Article 59.
(4) The
States may by Regulations amend the maximum period, in paragraph (2)(a),
for which proceedings may be adjourned under that paragraph.
59 Final
orders where defendant incapable
(1) This
Article applies where Article 58 applies and where, having regard to the
interests of justice and to –
(a) the
evidence already given, and such further evidence as may be given, for the
purpose of determining whether the defendant did the act with which he or she
is charged; and
(b) any
further matters as to which provision is made by Regulations under paragraph (3),
the court finds that the defendant did in fact do the act with which
he or she is charged.
(2) Where
this Article applies, the court may make in respect of the defendant –
(a) a
treatment order (with or without restriction) under Article 65;
(b) a
guardianship order under Article 66; and
(c) such
further orders as the States may by Regulations provide or specify.
(3) The
States may by Regulations make further provision as to the scope and exercise
of the court’s discretion under this Article, and in particular (but
without derogation) may make provision as to –
(a) facts
or matters which must be proved to the court, and the standard of proof;
(b) the
nature of evidence to be given, the persons who may give evidence, and the
procedures which must be followed, for the purpose mentioned in paragraph (1)(a);
and
(c) such
other matters as the court must take into account.
part 9
criminal justice: powers of court in
relation to accused persons suffering mental disorder
60 Interpretation
and application of Part 9
(1) In
this Part –
(a) a reference
to the “court” –
(i) in Articles 61
to 63, has the same meaning as in Part 8,
(ii) in Articles 64
to 66, is to the Magistrates’ Court or the Royal Court,
(iii) in Articles 67 to 69,
is to the Royal Court only;
(b) a
reference to an offence punishable with imprisonment includes reference to an
offence for which a person under 21 years of age may be sentenced to youth
detention under the Criminal Justice (Young Offenders) (Jersey) Law 1994[7] or the Criminal Justice
(Young Offenders) (Jersey) Law 2014[8], as the case may be; and
(c) “place
of safety” has the meaning given to that expression by Part 5, but
also includes (without qualification) a prison;
“prison” has the meaning given by Article 1(1) of
the Prison (Jersey) Law 1957[9].
(2) The
powers conferred by Articles 61 to 63 may be exercised in relation to a
defendant who –
(a) is
not subject to any order made by any court requiring the person’s
detention in custody, but is awaiting proceedings before a court for an offence
punishable by that court with imprisonment; or
(b) has
been convicted by the court of any offence punishable with imprisonment.
(3) The
powers conferred by Articles 64 to 66 may be exercised in relation to a
defendant who is convicted by the court of an offence punishable with
imprisonment, the sentence for which is not fixed by law.
(4) The
powers conferred by Article 67 may be exercised in relation to a defendant
who is convicted by the court of an offence punishable with imprisonment, the
sentence for which is fixed by law.
(5) Article 72
may apply in relation to any defendant.
(6) Where
a court makes an order in exercise of its functions under Articles 62 to 65
or 71(3) –
(a) the
court may further and additionally order that the defendant be conveyed to the
approved establishment in question within a period of 7 days beginning
with the making of the order;
(b) the
managers of that establishment shall admit the defendant within that period and
detain the defendant in accordance with the relevant provisions of this Part; and
(c) unless
the court orders otherwise, the provisions of Article 25 shall apply in
relation to a person detained under this Part as they apply in relation to a
person liable to be detained under Part 3.
61 Remand
on bail for report
(1) A
court may remand the defendant on bail for the purpose of obtaining a report on
the defendant’s mental condition and in doing so may order that the person
attend at an approved establishment, at such times and upon such conditions as
the court may specify, to enable the preparation of such a report.
(2) If
a defendant remanded under paragraph (1) fails to comply with the order,
the defendant may be arrested without warrant by any police officer and after
being arrested shall be brought as soon as possible before the court which
remanded the defendant.
(3) The
court may deal with a defendant brought before it under paragraph (2) in
any way in which a court could have dealt with him or her if that defendant had
not been remanded under this Article.
62 Remand to approved establishment for report
(1) Where
the court is satisfied of the matters specified in paragraph (2) and is of
the opinion –
(a) that
the defendant would not comply with an order under Article 61; or
(b) that
if the defendant were remanded on bail under that Article, it would otherwise
be impracticable for a report to be prepared on the defendant’s mental
condition,
the court may remand a defendant to a specified approved
establishment for the purpose of obtaining such a report.
(2) The
power conferred by paragraph (1) may not be exercised unless the court is
satisfied –
(a) on
the written or oral evidence of 2 registered medical practitioners, at least
one of whom is an approved practitioner, that there is reason to suspect that
the defendant is suffering from mental disorder; and
(b) on
the written or oral evidence of the approved practitioner who would be
responsible for making the report, or some other person representing the
managers of the approved establishment in question, that arrangements have been
made for the admission of the defendant to that establishment within 7 days
of the date of the order,
and if the court is so satisfied it may give directions for the
conveyance and admission of the defendant to the establishment, and for his or
her detention in the establishment or in a place of safety pending the
admission.
(3) If
it appears to the court which remanded a defendant under this Article that, on
the written or oral evidence of the approved practitioner responsible for
making the report, a further remand is necessary for completing the assessment
of the defendant’s mental condition, the court may further remand the
defendant –
(a) having
regard to the limits on such further remand in paragraph (4); and
(b) without
the defendant’s being brought before the court, if the defendant is
represented by an MHA who is given an opportunity to be heard.
(4) A
defendant shall not be remanded or further remanded under this Article for more
than 28 days at a time or for more than 26 weeks in all, and the
court may at any time terminate the remand if it appears appropriate to the
court to do so.
(5) A
defendant remanded under this Article is entitled –
(a) to
obtain, at his or her own expense, an independent report from a medical
practitioner chosen by the defendant; and
(b) on
the basis of any such report, to apply to the court for the remand to be
terminated.
(6) If
a defendant remanded under this Article absconds from the approved
establishment or while being conveyed to or from that establishment or any
place of safety, the defendant may be arrested without warrant by any police
officer and after being arrested shall be brought as soon as possible before
the court which remanded the defendant.
(7) The
court may deal with a defendant brought before it under paragraph (6) in
any way in which a court could have dealt with him or her if that defendant had
not been remanded under this Article.
63 Remand to approved establishment for treatment
(1) A
court may remand a defendant to a specified approved establishment for the
purpose of treatment.
(2) The
power conferred by paragraph (1) may not be exercised unless the court is
satisfied –
(a) on
the written or oral evidence of 2 registered medical practitioners, at least
one of whom is an approved practitioner, that there is reason to suspect that the
defendant is suffering from mental disorder of a nature or degree which makes
it appropriate for the defendant to be detained in an approved establishment
for treatment; and
(b) on
the written or oral evidence of the responsible medical officer, or some other
person representing the managers of the approved establishment in question,
that arrangements have been made for the admission of the defendant to that
establishment within 7 days of the date of the order,
and if the court is so satisfied it may give directions for the
conveyance and admission of the defendant to the establishment, and for his or
her detention in the establishment or in a place of safety pending the
admission.
(3) If
it appears to the court which remanded a defendant under this Article that, on
the written or oral evidence of the approved practitioner responsible for
making the report, a further remand is necessary for completing the defendant’s
treatment, the court may further remand that person –
(a) having
regard to the limits on such further remand in Article 62(4) as applied by
paragraph (4); and
(b) without
the defendant’s being brought before the court, if the defendant is
represented by an MHA who is given an opportunity to be heard.
(4) Paragraphs (4)
to (7) of Article 62 shall have effect as though a remand under this
Article were a remand under Article 62.
64 Interim orders
(1) A
court may order a defendant to be admitted to and detained in a specified
approved establishment for the purpose of assessment of –
(a) the
nature and degree of any mental disorder suffered by the defendant; and
(b) the
advisability, having regard to such assessment, of making a treatment order in
respect of the defendant under Article 65.
(2) The
power conferred by paragraph (1) may not be exercised unless the court is
satisfied –
(a) on
the written or oral evidence of 2 registered medical practitioners, at least
one of whom is an approved practitioner, that there is reason to suspect that
the defendant is suffering from mental disorder such as may warrant the making
of a treatment order under Article 65 in respect of the person;
(b) on
the written or oral evidence of the responsible medical officer, or some other
person representing the managers of the approved establishment in question,
that arrangements have been made for the admission of the defendant to that
establishment within 7 days of the date of the order,
and if the court is so satisfied it may give directions for the
conveyance and admission of the defendant to the establishment, and for his or
her detention in the establishment or in a place of safety pending the
admission.
(3) The
court making or renewing an order under this Article shall specify the period
of detention which shall be –
(a) on
the order being first made, no more than 12 weeks;
(b) on
any subsequent renewal of the order, no more than 28 days at a time; and
(c) for
no more than 26 weeks in all,
and the court may at any time revoke an order under this Article if
it appears appropriate to the court to do so.
(4) Where
it appears to the court which ordered the detention of a defendant under this
Article that, on the written or oral evidence of the responsible medical
officer, a period of further detention is warranted, the court may –
(a) renew
the order, having regard to the limits on such renewal in paragraph (3); or
(b) make
a treatment order under Article 65 in respect of the defendant,
and in either case may do so without the defendant’s being
brought before the court, if the defendant is represented by an MHA who is
given an opportunity to be heard.
(5) An
order made or renewed under this Article shall cease to have effect if –
(a) the
court makes a treatment order under Article 65 in respect of the accused
person; or
(b) the
court decides, on the written or oral evidence of the responsible medical
officer, to deal with the defendant in some other way.
(6) Where –
(a) the
court gives a direction for the conveyance of the defendant such as mentioned
in paragraph (2); and
(b) the
defendant absconds while being conveyed to or from an approved establishment or
any place of safety,
the defendant may be arrested without warrant by any police officer
and after being arrested shall be brought as soon as possible before the court
which ordered the detention of that person.
(7) The
court may deal with a defendant brought before it under paragraph (6) in
any way in which a court could have dealt with that defendant if that defendant
had not been detained under this Article.
65 Treatment orders
(1) A
court may order that the defendant be admitted to and detained in a specified
approved establishment for treatment, where –
(a) the
court is satisfied, on the evidence of 2 medical practitioners, at least one of
whom is an approved practitioner, that –
(i) the defendant is
suffering mental disorder of a nature or degree that warrants admission to and
detention in an approved establishment for treatment, and
(ii) the treatment
cannot be given to the defendant without such admission and detention;
(b) the
court is of the opinion, having regard to all the circumstances including (but
without limitation) the nature of the offence and the defendant’s
character and antecedents, and to other methods of dealing with the defendant,
that an order under this Article (a “treatment order”) is the most
suitable method of disposing of the case; and
(c) the
court is satisfied, on the written or oral evidence of the approved
practitioner or some other person representing the managers of the approved establishment
in question, that arrangements have been made for the admission of the
defendant to that establishment within 7 days of the date of the order.
(2) Evidence
under paragraph (1)(a) –
(a) must
be given in writing signed by the practitioners who have personally examined
the defendant either jointly or, if separately, at an interval of not more than
5 days; and
(b) must
specify the form of mental disorder from which the defendant is found to be
suffering.
(3) Where
a treatment order is made in respect of a defendant –
(a) the
defendant shall be conveyed to the specified approved establishment within the
period of 7 days beginning with the date of the order, and in accordance
with any directions which may be given by the court for that purpose;
(b) the
managers of the establishment shall admit the defendant and thereafter detain
and deal with the defendant as a patient in respect of whom a treatment
authorization had been made under Part 3; and
(c) the
court may not pass sentence of imprisonment, impose a fine or make a probation
order in respect of the offence for which the defendant is convicted, but may
make any other order which the court has power to make apart from this
provision.
66 Guardianship orders
(1) A
court may order that the defendant be received into guardianship, where –
(a) the
court is satisfied, on the evidence of 2 medical practitioners, at least one of
whom is an approved practitioner, that the defendant is suffering mental
disorder of a nature or degree that warrants reception into guardianship;
(b) the
court is of the opinion, having regard to all the circumstances including (but
without limitation) the nature of the offence and the defendant’s
character and antecedents, and to other methods of dealing with the defendant,
that an order under this Article (a “guardianship order”) is
the most suitable method of disposing of the case; and
(c) the
court is satisfied that the authority or person, who would be appointed as
guardian by the order, consents to act as guardian in relation to the
defendant.
(2) Evidence
under paragraph (1)(a) –
(a) must
be given in writing signed by the practitioners who have personally examined
the defendant either jointly or, if separately, at an interval of not more than
5 days; and
(b) must
specify the form of mental disorder from which the defendant is found to be
suffering.
(3) Where
a guardianship order is made in respect of a defendant –
(a) Part 4
shall apply as though a guardianship authorization had been made in respect of
the defendant under that Part; and
(b) the
court may not pass sentence of imprisonment, impose a fine or make a probation
order in respect of the offence for which the defendant is convicted, but may
make any other order which the court has power to make apart from this
provision.
67 Directions where sentence of imprisonment to be served in approved
establishment
(1) A court
may impose any sentence of imprisonment which it has power to impose in respect
of the offence in question, and in addition to that sentence may give one or
more directions such as are specified in paragraph (3), where the court is
satisfied –
(a) on
the evidence of 2 medical practitioners, at least one of whom is an approved
practitioner, that –
(i) the defendant is
suffering mental disorder of a nature or degree that warrants admission to and
detention in an approved establishment for treatment, and
(ii) appropriate
treatment is available for that defendant in that establishment; and
(b) on
the written or oral evidence of the responsible medical officer or some other
person representing the managers of the approved establishment in question,
that arrangements have been made for the admission of the defendant to that
establishment within 28 days of the date of the directions.
(2) If
the court is satisfied as described in paragraph (1)(b), the court may
give such further directions as it thinks fit for the conveyance of the
defendant to, and the detention of the defendant in, the establishment or a
place of safety pending admission to the establishment.
(3) The
directions mentioned in paragraph (1) are that –
(a) the
defendant may, instead of being removed to and detained in a prison, be removed
to and detained in a specified approved establishment; and
(b) discharge
of the defendant from the approved establishment shall be subject to such restrictions
as may be specified.
(4) If,
within the period of 28 days mentioned in paragraph (1)(b), it
appears to the Minister that by reason of an emergency or other special
circumstances it is not practicable for the defendant to be admitted to the
specified approved establishment, the Minister may direct the admission of the
defendant to such other approved establishment as appears to the Minister to be
appropriate.
(5) Where
the Minister gives a direction under paragraph (4), the Minister must provide
a copy of the direction to the court and any person having custody for the time
being of the defendant.
(6) Directions
given by the court under paragraph (2) or by the Minister under paragraph (4)
shall be sufficient authority for –
(a) a
police officer or any other person directed to do so to convey the defendant to
the approved establishment in question; and
(b) the
managers of the establishment to admit the defendant and subsequently deal with
the defendant in accordance with this Law.
(7) A
prisoner whose sentence of imprisonment has not expired may be discharged from
the approved establishment to which he or she has been transferred under this
Article –
(a) on
an application made to the court by –
(i) the prisoner, or
(ii) the Attorney
General;
(b) on
the grounds that, in the opinion of the responsible medical officer, it is no
longer necessary for the prisoner to be detained in such an establishment by
reason of mental disorder.
(8) Where
paragraph (7) applies, the prisoner shall be conveyed to prison in
accordance with any further directions given by the court for that purpose, and
the Governor of the prison shall admit the prisoner and deal with him or her as
if paragraphs (1) to (6) of this Article had not applied.
68 Special
restrictions on treatment orders
(1) Where
a treatment order is made in respect of a defendant and it appears to the
court, having regard to the matters in paragraph (2), that it is necessary
to do so to protect the public from serious harm, the court may further order
that the treatment order shall take effect only with special restrictions,
either without limit of time or during such period as the court may specify.
(2) The
matters mentioned in paragraph (1) as those to which the court must have
regard are –
(a) the
nature and gravity of the offence;
(b) the
antecedents of the defendant;
(c) the
risk of the defendant committing further offences if the defendant remains at
liberty.
(3) A
further order under paragraph (1) (a “restriction order”)
shall not be made unless at least one of the practitioners giving evidence for
the purposes of Article 65(1)(a) has given evidence orally before the
court.
(4) Where
a restriction order is made in respect of a defendant –
(a) the
defendant shall be conveyed to the specified approved establishment within the
period of 7 days beginning with the date of the order and in accordance
with any directions given by the court for that purpose;
(b) the
managers of the establishment shall admit the defendant and thereafter detain
and deal with the defendant as a patient in respect of whom a treatment authorization
had been made under Part 3, except that –
(i) leave of absence
under Article 24 shall not be granted nor the defendant be transferred
under Article 26 without leave of the court, and
(ii) Article 27(1)
to (5) shall not apply unless and until the restriction order ceases to have
effect in accordance with paragraph (5).
(5) A
restriction order shall not cease to have effect unless the court is satisfied,
on an application made for the purpose by –
(a) the
defendant, or the defendant’s nearest person appointed or nominated under
Part 2; or
(b) pursuant
to a report under paragraph (6), the Attorney General,
that restrictions in respect of the defendant are no longer required
to protect the public from serious harm.
(6) During
the period for which a restriction order remains in effect, the responsible
medical officer must –
(a) examine
the defendant at such intervals (not exceeding 12 months) as the court may
direct; and
(b) make
a report of each such examination to the Attorney General, containing –
(i) the responsible
medical officer’s opinion as to whether the restriction order should
continue in effect, and
(ii) such further
particulars as the court may require.
69 Transfer orders
(1) This
Article applies in respect of a person detained in a prison (the
“prisoner”).
(2) The
court may order the transfer of a prisoner from a prison to an approved
establishment and the detention of the prisoner in that establishment in
accordance with paragraph (5), where the court is satisfied –
(a) on
the evidence of 2 registered medical practitioners, at least one of whom must
be an approved practitioner, that the prisoner is suffering from mental
disorder of a nature or degree that makes it appropriate for the prisoner to be
detained in an approved establishment for treatment;
(b) that
the prisoner should be so transferred and detained in the public interest; and
(c) on
the written or oral evidence of the approved practitioner who would be
responsible for making the report, or some other person representing the
managers of the approved establishment in question, that arrangements have been
made for the admission of the accused person to that establishment within 7 days
of the date of the order.
(3) Subject
to paragraph (4), evidence under paragraph (2)(a) –
(a) must
be given in writing signed by the practitioners who have personally examined
the defendant either jointly or, if separately, at an interval of not more than
5 days; and
(b) must
specify the form of mental disorder from which the defendant is found to be
suffering.
(4) In
a case of emergency the court may waive the requirement for written evidence
imposed by paragraph (3)(a) and the evidence of a medical practitioner may
be given orally.
(5) Where
an order under this Article (a “transfer order”) is made in respect
of a prisoner –
(a) the
prisoner shall be conveyed to the specified approved establishment within the
period of 7 days beginning with the date of the order and in accordance
with any directions given by the court for that purpose; and
(b) the
managers of the approved establishment shall admit the defendant and detain the
defendant in accordance with this Article.
(6) Unless –
(a) the
prisoner is discharged under paragraph (8); or
(b) the
prisoner’s sentence of imprisonment expires,
a prisoner who is subject to a transfer order may be detained for a
period of 6 months beginning with the date of the order.
(7) A
period of detention imposed by a transfer order may be renewed for one further
period of 6 months and thereafter for successive periods of 12 months –
(a) on
an application made by the Attorney General;
(b) on
the grounds that, in the opinion of the responsible medical officer –
(i) the prisoner is
suffering from mental disorder of a nature or degree that makes it appropriate
for the prisoner to be detained in an approved establishment for treatment, and
(ii) the prisoner
should continue to be so detained in the public interest.
(8) A
prisoner whose sentence of imprisonment has not expired may be discharged from
the approved establishment to which he or she has been transferred under this
Article –
(a) on
an application made to the court by –
(i) the prisoner, or
(ii) the Attorney
General;
(b) on
the grounds that, in the opinion of the responsible medical officer, it is no
longer necessary for the prisoner to be detained in such an establishment by
reason of mental disorder.
(9) Where
paragraph (8) applies, the prisoner shall be conveyed to the prison in
accordance with any directions given by the court for that purpose, and the
Governor of the prison shall admit the prisoner and deal with the prisoner as
if no transfer order in respect of him or her had been made.
70 Special
provisions where patient sentenced to imprisonment
(1) Paragraph (2)
applies where a patient who –
(a) is
liable to be detained by virtue of an assessment authorization or treatment
authorization; or
(b) is
subject to guardianship by virtue of a guardianship authorization,
is detained in custody, pursuant to an order or sentence of any
court in Jersey, for a period (or successive periods in the aggregate)
exceeding 6 months.
(2) Where
this paragraph applies, the application mentioned in paragraph (1)(a) or
(b) shall cease to have effect at the end of the period mentioned in that
paragraph.
(3) Where
a patient to whom paragraph (1)(a) or (b) applies is detained in custody,
but the application in question does not cease to have effect under paragraph (2) –
(a) if
(apart from this paragraph) the patient would cease to be liable to be detained
or to be subject to guardianship on or before the day on which the patient is
discharged from custody, the patient shall not cease to be so liable or so
subject until the end of that day; and
(b) in
any case, Articles 25 and 28 shall apply to the patient upon his or her
discharge from custody as if the patient were absent without leave on the day
of the discharge.
71 Committal
to Royal Court for making of orders
(1) This
Article applies in respect of a defendant who is convicted by a court other
than the Royal Court of an offence punishable with imprisonment.
(2) Where
this Article applies, if –
(a) a
court, other than the Royal Court, is satisfied as to the matters in Article 65(1)(a)
and (c), as it would be required to be satisfied were the court to consider
making a treatment order under that Article; and
(b) it
appears to the court, having regard to the matters in Article 68(2), that
if a treatment order were made in the case it should take effect with special
restrictions,
the court shall commit the defendant, in custody or as described in paragraph (3),
to be dealt with by the Royal Court.
(3) The
court may by order direct the defendant to be admitted to an approved establishment
and to be detained there until the case can be dealt with by the Royal Court,
and may further give directions for the conveyance of the defendant from that
establishment to attend the Royal Court.
(4) Where
a defendant is committed to the Royal Court under this Article, the Royal Court
shall have all such powers to deal with the defendant under this Part as it
would have if the defendant had been convicted before it, and –
(a) in
particular the Royal Court may, if it would have had power to do so upon
conviction of the defendant before it under Article 65 –
(i) make a treatment
order in respect of the defendant, and
(ii) if it thinks fit
and having regard to the matters in Article 68(2), make a further order
that the treatment order shall take effect with special restrictions; and
(b) further,
the Royal Court may deal with the defendant in any other manner in which the
court committing the defendant could have dealt with him or her.
72 Special
verdicts
(1) Paragraph (2)
applies in any proceedings, whether or not a determination of incapacity has
been made under Part 8 in respect of the defendant.
(2) Where
the court finds that –
(a) the
defendant carried out the act alleged; but
(b) at
the time of carrying out the act, the defendant was suffering from mental
disorder to such a substantial degree that he or she ought not to be held
criminally responsible for doing so,
the court shall record a special verdict to that effect and may
either acquit the defendant or make such an order as it has power to make under
Article 59.
part 10
safeguarding: offences against those in
receipt of care etc.
73 Offence of wilful neglect
(1) It
is an offence for the managers or any member of staff of an approved
establishment to ill-treat or wilfully neglect –
(a) a
patient for the time being detained or receiving treatment for mental disorder
in the approved establishment;
(b) on
the premises of which the establishment forms part, a patient receiving
treatment for mental disorder as an out-patient; and
(c) any
other person for the time being under this Law in the care or custody of the
establishment or of the mental health professional.
(2) It
is an offence for any individual to ill-treat or wilfully neglect –
(a) a
patient who is suffering from mental disorder and is for the time being subject
to the individual’s guardianship; and
(b) any
person who is otherwise in the individual’s care or custody whether by
virtue of any legal or moral obligation or otherwise.
(3) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 5 years and a fine.
74 Sexual offences: prohibited acts
(1) It
is an offence for any person (“A”) to commit an act described in paragraph (2)
(in this Article and in Articles 75 and 76, a “prohibited
act”) with, towards, or in relation to, any other person (“B”)
where A knows, or could reasonably be expected to know, that –
(a) B
is suffering from any mental disorder (including any learning disability); and
(b) because
of that disorder or for reasons related to it, B is unable to refuse
involvement in the act.
(2) For
the purposes of paragraph (1), A commits a prohibited act if –
(a) A
intentionally touches B, where the touching is sexual;
(b) A
intentionally causes or incites B to engage in an act which is sexual;
(c) A
intentionally engages in an act which is sexual, for the purpose of obtaining
sexual gratification, and does so –
(i) when B is either
present or in a place from which A can be observed by B,
(ii) knowing or believing
that B is aware, or intending that B should be aware, that A is engaging in the
act; or
(d) for
the purpose of obtaining sexual gratification, A intentionally causes B to
watch a third person engaging in an act which is sexual, or to look at an image
of any person engaging in such an act.
(3) For
the purposes of paragraph (2) –
(a) touching
includes touching –
(i) with any part of
the body,
(ii) with anything
else, and
(iii) through anything; and
(b) touching
or any other act is sexual if a reasonable person would consider that –
(i) whatever the
circumstances or any person’s purpose in relation to the act, it is
because of its nature sexual, or
(ii) because of the
nature of the act it may be sexual and because of its circumstances or the purpose
of any person in relation to it (or both), it is sexual.
(4) For
the purposes of paragraph (1)(b), B shall be deemed to be unable to refuse
involvement in an act if –
(a) B
lacks the capacity to choose whether or not to agree to such involvement (whether
because B does not understand the nature of the act, or for any other reason);
or
(b) for
any reason, B is unable freely to communicate such a choice to A.
75 Sexual offences: relationship of care
(1) It
is an offence for any person (“A”) –
(a) to
commit a prohibited act with, towards or in relation to any other person
suffering from a mental disorder (“B”); or
(b) to
procure by inducement, threat, or deception, B’s participation in a
prohibited act,
where A is involved in B’s care in any way described in paragraphs (3)
or (4).
(2) Where
A is involved in B’s care for the purposes of paragraph (1), in
determining whether an offence has been committed under that paragraph it is to
be presumed that, unless the contrary is shown, A knows, or could reasonably be
expected to know, that B has a mental disorder.
(3) A
is involved in B’s care for the purposes of paragraph (1) if –
(a) B
is accommodated and cared for in an approved establishment or any other
residential or nursing home; or
(b) B
is a patient for whom care services are provided by any public or private
health care provider, whether in B’s home or elsewhere,
and A performs functions, in the course of A’s employment or
of services provided by A, which bring or are likely to bring A into regular
face-to-face contact with B.
(4) A
is involved in B’s care for the purposes of paragraph (1) if –
(a) A
is, whether or not in the course of employment, a provider of care, assistance
or services to B in connection with B’s mental disorder; and
(b) A
is likely to have regular face-to-face contact with B.
(5) It
is a defence for A, being charged with an offence under paragraph (1), to
prove that, at the time of the prohibited act –
(a) B
was aged 16 years or over; and
(b) A
was lawfully married to, or in a civil partnership with, B.
76 Sexual offences: coercion
It is an offence for any person (“A”) to procure by
inducement, threat, or deception the participation of any other person
(“B”) in a prohibited act where A knows, or could reasonably be
expected to know, that B is a person suffering from a mental disorder.
77 Sexual
offences: penalties
(1) A
person guilty of an offence under Article 74(1) or Article 76 is
liable –
(a) in
the case of a prohibited act described in Article 74(2(a) or (b) –
(i) where the act involved
penetration, to imprisonment for life, or
(ii) where the act did
not involve penetration, to imprisonment for a term of 14 years;
(b) in
the case of a prohibited act described in Article 74(2)(c) or (d), to
imprisonment for 10 years.
(2) A
person guilty of an offence under Article 75(1) is liable –
(a) in
the case of a prohibited act described in Article 74(2)(a) or (b) –
(i) where the act
involved penetration, to imprisonment for a term of 14 years, or
(ii) where the act did
not involve penetration, to imprisonment for a term of 10 years;
(b) in
the case of a prohibited act described in Article 74(2)(c) or (d), to
imprisonment for a term of 7 years.
(3) For
the purposes of this Article, “penetration” means penetration –
(a) of
the anus, mouth or vagina of one of the participants in the prohibited act;
(b) by
a part of the body of the other participant, or by anything else.
part 11
safeguarding: patients’ rights
78 Information
to be given to patients
(1) Where
a patient is detained or taken into guardianship under this Law, the managers
of the approved establishment in which the patient is detained or, as the case
may be, the Minister must, as soon as practicable after the detention or guardianship
commences, take all such steps as are reasonable to ensure that the patient
understands –
(a) under
which of the provisions of the Law the patient is detained or taken into
guardianship, and the effect of those provisions;
(b) what
rights of access to independent advocacy, representation and review are available
to the patient under this Law;
(c) the
effect, so far as relevant in that patient’s case, of Articles 7,
13, 27, Part 6, Articles 79, 81 to 84, 85 and 91; and
(d) such
other matters as may be required by Regulations, or a code of practice, under this
Law.
(2) The
managers or, as the case may be, the Minister must further (unless the patient
requests otherwise) take such steps as are practicable to provide the
patient’s nearest person, at the same time as or within a reasonable time
of giving information to the patient under paragraph (1), with the same
information or, if in writing, with a copy of that information.
(3) The
steps to be taken under paragraph (1) may include giving the information
required either in writing or orally, or by both means, having regard in
particular to the patient’s ability to understand the information,
however given.
79 Independent
mental health advocates: regulations
(1) This
Article applies to make provision for the appointment of independent mental
health advocates (“MHAs”) to act in relation to and on behalf of
qualifying patients.
(2) The
States may by Regulations require the Minister to make reasonable arrangements –
(a) for
the appointment of independent mental health advocates (“MHAs”) in
accordance with further provision to be made by the Regulations of the kind described
in paragraph (3)(a) to (e); and
(b) as
to the role and conduct of MHAs, in accordance with provision to be made by the
Regulations of the kind described in paragraphs (3)(f) and (g), (4) and (5).
(3) Regulations
under this Article may in particular make provision including (but not limited
to) provision as to –
(a) the
qualifications required of a person to be appointed;
(b) the
circumstances in which a person may so act;
(c) the
procedure for appointment and terms and conditions of appointment;
(d) the
circumstances in which the appointment may end or be terminated and the
formalities for doing so;
(e) as
to the nature and level of payment (whether by way of fees, or reimbursement of
expenses) which may be made to MHAs;
(f) steps
to be taken to ensure that qualifying patients and their nearest persons are
aware of the availability of the services of MHAs; and
(g) matters
in which MHAs may help qualifying patients, and the powers which MHAs may
exercise for the purpose of giving such help.
(4) Matters
for the purpose of paragraph (3)(g) include in particular –
(a) help
to be given to qualifying patients in obtaining information about, and
understanding –
(i) applicable and
relevant provisions of this Law, with particular regard to the rights of a
patient under it, and
(ii) the nature,
effects of, and basis (both legal and medical) for any treatment or proposed
treatment; and
(b) help
to be given to qualifying patients as to the proper exercise of those rights.
(5) Powers
for the purpose of paragraph (3)(g) include in particular –
(a) the power to visit and
interview patients in private;
(b) the power to visit and
interview any person professionally concerned with the treatment of any
patient, and the manner of its exercise;
(c) the power to require
disclosure and inspection of records relating to patients (whether held by
approved establishments, by the Minister or authorized officers), and the
circumstances and manner of the exercise of such power (including, for the
avoidance of doubt, provision as to circumstances in which a patient may object
to disclosure).
(6) In
this Article –
“qualifying patient” means –
(a) a
patient liable to be detained in an approved establishment under Part 3;
and
(b) a
patient subject to guardianship under Part 4; and
“independent” means independent of any other persons
professionally concerned with the care or treatment of a qualifying patient.
80 Forgery and false statements
(1) A
person who, with intent to deceive –
(a) forges
any document required or authorized to be made under or for the purposes of
this Law; or
(b) uses,
allows any other person to use, or makes or has in his or her possession any
document which the person knows to be forged or to so closely resemble any
document listed in paragraph (2) as to be calculated to deceive,
is guilty of an offence.
(2) The
documents mentioned in paragraph (1)(b) include, in particular and without
limitation –
(a) an
application under Part 3;
(b) any
medical recommendation, report or information required to be made, given or
provided under this Law; or
(c) any
other document required or authorized to be made under or for any of the
purposes of this Law.
(3) A
person who –
(a) knowingly
makes a false entry or statement in any document listed in paragraph (2);
or
(b) with
intent to deceive, makes use of such an entry or statement which the person
knows to be false,
is guilty of an offence.
(4) A
person guilty of an offence under this Article shall be liable to imprisonment
for a term of 2 years and to a fine.
81 Provision
of patients’ allowances
Where it appears to the Minister that a patient in an approved
establishment (whether liable to be detained under Part 3 or not) would
otherwise be without resources to meet occasional personal expenses, the
Minister may pay to or on behalf of the patient such amount in respect of those
expenses as the Minister may think fit.
82 Restrictions on access to electronic media and communications etc.
(1) Access
by a patient detained in an approved establishment to electronic media or
communications, or to a telephone (including any form of personal mobile
device) may be restricted if, in the opinion of the managers of the
establishment, it is necessary to do so –
(a) in
the interests of the health or safety of the patient; or
(b) for
the protection of other persons.
(2) Restrictions
imposed under paragraph (1) may include –
(a) restriction
of the ability of a patient to contact a specified person by any means
mentioned in that paragraph, where the person has requested such a restriction
by notice given in writing to the managers; and
(b) confiscation
of any article or device which may be used for the purposes of electronic media
or communications.
(3) Where
any restriction is imposed under paragraph (1) in respect of a
patient’s access –
(a) the
managers shall, no later than 7 days after it is imposed, give notice in
writing of the restriction and of the right to review under Article 84 –
(i) to the patient, and
(ii) where the restriction
relates to contact with a specified person as provided by paragraph (2),
to that person;
and
(b) the
managers shall record in writing the fact and nature of the restriction.
(4) Paragraph (1)
shall not apply so as to restrict communications by any means mentioned in that
paragraph between a patient and –
(a) the
Attorney General;
(b) a
member of the States;
(c) a judicial
officer of a court, including for this purpose the European Court of Human
Rights;
(d) the
patient’s legal representative;
(e) the
patient’s guardian;
(f) the
patient’s nearest person;
(g) an
independent mental health advocate;
(h) a
police officer;
(i) the
Mental Health Review Tribunal; or
(j) any
other person such as may be prescribed by Regulations made by the States for
this purpose.
83 Restrictions
on postal correspondence
(1) A
postal packet addressed to a patient detained in an approved establishment may
be withheld from the patient if, in the opinion of the managers of the
establishment it is necessary to do so –
(a) in
the interests of the health or safety of the patient; or
(b) for
the protection of other persons.
(2) A
postal packet addressed by a patient detained in an approved establishment may
be withheld from dispatch by the manager if –
(a) the
addressee has given notice in writing to the managers or the responsible
medical officer that any communications addressed to the addressee by the
patient should be withheld; or
(b) if
it appears to the managers that the communication –
(i) would be likely
to cause distress to the addressee, or
(ii) might cause
danger to any person.
(3) Paragraphs (1)
and (2) shall not apply so as to permit restriction of communications by post
between a patient and –
(a) the
Attorney General;
(b) a
member of the States;
(c) a
judicial officer of a court, including for this purpose the European Court of
Human Rights;
(d) the
patient’s legal representative;
(e) the
patient’s guardian;
(f) the
patient’s nearest person;
(g) an
independent mental health advocate;
(h) a
police officer;
(i) the
Mental Health Review Tribunal; or
(j) any
other person such as may be prescribed by Regulations made by the States for this
purpose.
(4) The
managers of an approved establishment may inspect and open a postal packet
addressed to or by a patient for the purpose of determining whether or not paragraphs (1)
or (2)(b) may apply, and for no other purpose.
(5) Where
a postal packet is withheld under this Article –
(a) the
managers shall, no later than 7 days after the postal packet is withheld,
give notice in writing of the fact and of the right to review under Article 84 –
(i) to the patient,
and
(ii) where paragraph (2)
applies, to the addressee;
and
(b) the
managers shall record in writing the fact of, and reason for, the withholding.
(6) In
this Article, “postal packet” has the same meaning as in section 27
of the Postal Services Act 2011 of the United Kingdom.
84 Review
of restrictions, and offence where restriction unlawful
(1) The
patient or, where notice has been given to him or her under Article 83(5)(a),
the addressee, may apply to the Mental Health Review Tribunal, in such form as
may be prescribed or in writing substantially to the same effect, for a review
of any decision –
(a) under
Article 82, to restrict access to communications; or
(b) under
Article 83, to withhold a postal packet.
(2) An
application under paragraph (1) must be made within the period of 6 months
beginning with the date of receipt of notice of the decision of which review is
sought.
(3) Upon
determining the application the Tribunal may –
(a) uphold
the decision; or
(b) quash
the decision and give such directions as to the restriction of communication by
or with the patient, or as to the disposal of the postal packet (as the case
may be) as the Tribunal may think fit.
(4) Except
as provided by Articles 82 or 83, it shall not be lawful to restrict –
(a) a
patient’s access to electronic communications; or
(b) receipt
or dispatch of a postal packet by a patient,
and a person who does so unlawfully shall be guilty of an offence
and liable upon conviction to a fine of level 3 on the standard scale.
part 12
transfer of patients between jersey and
other jurisdictions
85 Removal from Jersey: role of Tribunal
(1) A
patient may not be removed from Jersey pursuant to Articles 86 to 88
except as authorized –
(a) by
order of the Court, in which case the Court shall have all such powers as are
conferred on the Minister under Articles 86(2), 87(2), 88 and 89; or
(b) by
the Minister, with the approval of the Tribunal.
(2) Where
the Minister authorizes removal under Article 86 or 87, the Minister must
immediately notify the Tribunal and the Tribunal shall review the authorization
within the period of 7 days beginning with the date of such notification.
(3) In
this Part, reference to a patient is to a patient liable to be detained under
Part 3 or pursuant to an order under Part 9.
(4) For
the avoidance of doubt the Tribunal shall not have power under this Article or
otherwise to review an authorization given under this Part by order of the Court.
86 Removal of patient to another place in the British Islands
(1) The
Minister may authorize the removal of a patient from Jersey to another place in
the British Islands where it appears to the Minister that –
(a) such
removal is in the best interests of the patient;
(b) there
is provision in that place for the reception of the patient from Jersey
corresponding to Article 89; and
(c) arrangements
have been made for the patient’s admission in that place.
(2) When
authorizing removal under paragraph (1) the Minister may give any
directions necessary for the conveyance of the patient to the intended destination
in the place mentioned in that paragraph.
(3) Following
removal of a patient from Jersey under this Article, the assessment or
treatment authorization by virtue of which that patient is liable to be
detained shall cease to have effect upon admission of the patient pursuant to
the arrangements mentioned in paragraph (1)(c).
87 Removal
of patient to another place where no reciprocal arrangements
(1) The
Minister may authorize the removal of a patient from Jersey to another place in
the British Islands where it appears to the Minister that –
(a) such
removal is in the interests of the patient;
(b) there
is no provision in that place for the reception of the patient from Jersey
corresponding to Article 89 but the patient is ordinarily resident in that
place; and
(c) proper
arrangements have been made for the removal of the patient to that place, and
for the patient’s care and treatment there.
(2) When
authorizing removal under paragraph (1) the Minister may give such
directions as the Minister thinks fit for –
(a) the
conveyance of the patient to the intended destination in the place mentioned in
that paragraph; and
(b) the
detention of the patient in any other place or on board any ship or aircraft
until arrival at any specified port or other place in the British Islands.
88 Removal of alien patient
(1) The
Minister may authorize the removal of a patient who is an alien where it
appears to the Minister that –
(a) such
removal is in the interests of the patient; and
(b) that
proper arrangements have been made for the removal of the patient to a country
or territory outside the British Islands and for the patient’s care and
treatment there.
(2) When
authorizing removal under paragraph (1) the Minister may give such
directions as the Minister thinks fit for –
(a) the
conveyance of the patient to the intended destination in the place mentioned in
that paragraph; and
(b) the
detention of the patient in any other place or on board any ship or aircraft
until arrival at any specified port or other place in the country or territory
concerned.
89 Reception of patient into Jersey
(1) This
Article applies where a patient is removed to Jersey from another place in the
British Islands under an enactment corresponding to Article 86.
(2) Where
this Article applies and the patient is admitted to an approved establishment,
this Law shall apply to the patient as if, on the date of admission, the
patient had been so admitted pursuant to an application order or direction
given under the provision of this Law corresponding to the enactment of the
place from which the patient was removed and by virtue of which the patient was
liable to be detained in that place.
(3) While
being conveyed in Jersey to the approved establishment mentioned in paragraph (1),
the patient shall be deemed to be in legal custody.
part 13
miscellaneous and general provisions
90 Codes of practice
(1) The
Minister must issue a code of practice for the purposes of this Law and in
particular (but without limitation) for the guidance of persons, on whom functions
are conferred by or under this Law, in carrying out such functions.
(2) A
code must include a statement of such principles as the Minister may consider should
inform decisions (whether generally or in particular) under this Law, and the
statement must address each of the following matters and the weight to be
accorded to them –
(a) respect
for the wishes and feelings of patients so far as these can reasonably be
ascertained;
(b) involvement
of patients so far as reasonably possible in determining their own care and
treatment;
(c) respect
for diversity, including (but without limitation) issues of religion and sexual
orientation;
(d) minimal
restriction on liberty of patients;
(e) effectiveness
of treatment;
(f) respect
for the views of patients’ carers;
(g) the
wellbeing and safety of patients; and
(h) public
safety.
(3) In
issuing a code the Minister must also have regard to the need to ensure –
(a) the
efficient use of resources; and
(b) the
equitable distribution of services.
(4) Paragraph (5)
applies where it appears to the court or to the Tribunal, when conducting any
civil or criminal proceedings, that –
(a) a
provision of a code issued under this Article; or
(b) a
failure to comply with a requirement of any such code,
is relevant to a question arising in those proceedings.
(5) Where
this paragraph applies, the relevant provision or failure must be taken into
account in determining the question, but a failure to comply with a code shall
not of itself make a person liable to any civil or criminal proceedings.
(6) The
Minister may amend a code from time to time as the Minister may see fit, and a
code may make, as respects any matter in relation to which it makes provision –
(a) the
same provision for all cases, or different provision for different cases or
classes of case, or different provision for the same case or class of case for
different purposes; and
(b) any
such provision either unconditionally or subject to any specified conditions.
(7) Before
issuing or amending a code, the Minister must consult such bodies as appear to
the Minister to be concerned.
(8) The
Minister must publish any code of practice which is for the time being in force
in such manner as may appear to the Minister to be appropriate for bringing it
to the attention of persons likely to be concerned with or affected by its
provisions.
91 Offence
of assisting patient to abscond
(1) A
person who induces or knowingly assists a patient liable to be detained, or
subject to guardianship, under this Law to absent himself or herself without leave
from an approved establishment or the custody of his or her guardian (as the
case may be) is guilty of an offence.
(2) A
person who –
(a) knowingly
harbours a patient who is absent without leave or is otherwise at large and
liable to be retaken under the provisions of Part 5 or Part 9; or
(b) gives,
with intent to prevent, hinder or interfere with the patient being retaken into
custody or returned to an approved establishment, any assistance to such a
patient,
is guilty of an offence.
(3) A
person guilty of an offence under this Article is liable to imprisonment for a
term of 2 years and a fine.
92 Offence of obstruction
A person who –
(a) refuses
to allow the inspection of any premises;
(b) without
reasonable cause, refuses to allow the visiting, interviewing or examination of
a patient by a person authorized in that behalf by or under this Law;
(c) refuses
to produce for the inspection of any such authorized person any document or
record duly required by that person; or
(d) otherwise
obstructs any such authorized person in the exercise of his or her functions
under this Law,
is guilty of an offence and liable to imprisonment for a term of 3 months
and a fine of level 3 on the standard scale.
93 Protection for acts done in pursuance of this Law
(1) No
liability is incurred by any person in respect of any act done in the discharge
or purported discharge of a function conferred on the person by or under this
Law.
(2) Paragraph (1)
does not apply –
(a) if
it is shown that the act in question was done in bad faith, or without due and
reasonable care; or
(b) so
as to prevent an award of damages made in respect of the act on the ground that
the act was unlawful under Article 7(1) of the Human Rights (Jersey) Law 2000[10].
94 Regulations
(1) The
States may by Regulations make provision for the purpose of giving full effect
to this Law and, in particular but without derogation from the generality of
this power, such Regulations –
(a) may
make provision for or in respect of any matter that by this Law is required or
permitted to be done by Regulations; and
(b) may
amend any enactment.
(2) Regulations
under this Law may make such transitional, saving, incidental, consequential or
supplementary provision as may appear to the States to be necessary or expedient
for the purposes of the Regulations.
95 Orders
(1) The
Minister may make Orders for prescribing anything which is required or
authorized to be prescribed under this Law.
(2) For
the purpose of giving full effect to this Law, the Minister may by Order –
(a) prescribe
the form of any application, recommendation, report, direction, notice or other
document to be made, given or provided under this Law;
(b) prescribe
the manner in which any such document as is mentioned in sub-paragraph (a)
may be served, and proved in evidence;
(c) prescribe
for a register or other records to be kept in respect of patients liable to be
detained or subject to guardianship under this Law;
(d) make
provision for providing or making available to such patients and their relatives
and nearest persons written statements of patients’ rights under this
Law;
(e) make
provision for the determination of the age of any person whose exact age cannot
be ascertained by reference to registers kept under the Marriage and Civil
Status (Jersey) Law 2001[11];
(f) make
provision for enabling functions of a patient’s nearest person or
guardian to be performed, in such circumstances and subject to such conditions
as may be prescribed, by any person authorized to do so by the relative or
guardian; and
(g) make
provision as to the conditions under which patients may be transferred under Part 12.
(3) Orders
under this Law may make such transitional, saving, supplementary and
consequential provision as may appear to the Minister to be necessary or
appropriate.
(4) The
Subordinate Legislation (Jersey) Law 1960[12] applies to Orders made under
this Law.
96 Rules of Court
The power to make rules of court under the Royal Court (Jersey) Law 1948[13] includes power to make rules
regulating practice and procedure in or in connection with proceedings before
the court under this Law and in particular (but without derogation from the
generality of this power) to make rules as to –
(a) applications
under Articles 11, 12, 67 and 69 (including the hearing and determination
of applications otherwise than in open court); and
(b) the
visiting and interviewing of patients in private, by or under the direction of
the Court.
97 Repeals and saving
(1) The
Criminal Justice (Insane Persons) (Jersey) Law 1964[14] and (subject to paragraph (2))
the Mental Health (Jersey) Law 1969[15] are repealed.
(2) Article 43
of the Mental Health (Jersey) Law 1969 (and, so far as necessary for the
purposes of that Article, Articles 1, 3, 4 and Part 2 of, and Schedule 2
to that Law) shall continue to have effect until the commencement, if occurring
after the commencement of this Law, of Part 4 of the Capacity Law.
98 Citation
and commencement
This Law may be cited as the
Mental Health (Jersey) Law 2016 and shall come into force on such day or
days as the States may by Act appoint.
l.-m. hart
Deputy Greffier of the States