Citation, commencement and extent

1. —(1) These Regulations may be cited as the Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008.

(2) These Regulations shall come into force on 1st April 2009.

(3) These Regulations apply in relation to England only.

Interpretation

2. In these Regulations—

“the Act” means the Mental Health Act 1983;

“commissioning body” means a body, individual or group of individuals (or any combination of these) authorised under regulations 3 and 10 of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002( 3 ) or regulation 4 of the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000( 4 ) to exercise section 130A functions;

“IMHA” means an independent mental health advocate;

“provider of advocacy services” means a person (including a voluntary organisation) that employs or engages individuals who may be made available to act as an IMHA but does not include a commissioning body;

“section 130A functions” means the Secretary of State’s functions under section 130A of the Act.

Directions in respect of section 130A functions

3. —(1) Where a commissioning body, in exercising section 130A functions, enters into arrangements with an individual who may be made available to act as an IMHA the Secretary of State directs that the commissioning body must be satisfied that the conditions set out in regulation 6 are satisfied.

(2) Where a commissioning body, in exercising section 130A functions, enters into arrangements with a provider of advocacy services the Secretary of State directs that such arrangements must include a term that the provider of advocacy services is satisfied that the conditions set out in regulation 6 are satisfied.

(3) The Secretary of State directs that a commissioning body, in exercising section 130A functions must, as far as reasonably practicable, have regard to the diverse circumstances (including but not limited to the ethnic, cultural and demographic needs) of qualifying patients in respect of whom that commissioning body may exercise those functions.

Amendment of the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000

4. In regulation 5(b) (functions of NHS bodies) of the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000, for “and 117” substitute “, 117 and 130A”.

Amendment of the National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002

5. —(1)The National Health Service (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 are amended as follows.

(2) In regulation 2 (interpretation) after the definition of “prison”, insert—

“ “qualifying patient” has the same meaning as in section 130C of the Mental Health Act 1983; ” .

(3) In regulation 3 (functions of the Secretary of State exercisable by Strategic Health Authorities and Primary Care Trusts)—

(a) at the end of paragraph (7)(a)(i), delete “and”;

(b) after paragraph (7)(a)(ii), add—

“ (iii) qualifying patients resident in Scotland, Wales or Northern Ireland who are present in its area and who do not fall under the responsibility of another Primary Care Trust under head (i) above; and

(iv) qualifying patients present in Wales who are liable to be detained under the Mental Health Act 1983 in a hospital or registered establishment in its area and who do not fall under the responsibility of another Primary Care Trust under head (i) and (ii) above. ” ;

(c) after paragraph (11) add—

“ (12) In this regulation, “registered establishment” has the same meaning as in section 34(1) of the Mental Health Act 1983. ” .

(4) In regulation 10 (arrangements by Primary Care Trusts for exercise of functions)—

(a) in paragraph (1) for “paragraphs (5)”, substitute “paragraphs (1A), (5)”;

(b) after paragraph (1), insert—

“ (1A) A Primary Care Trust may not exercise jointly with an NHS trust any functions under section 130A of the Mental Health Act 1983. ” .

(5) After the entry relating to section 121 of the Chronically Sick and Disabled Persons Act 1970( 5 ) in Part 2 of Schedule 1 (Secretary of State Functions exercisable by (A) Primary Care Trusts and (B) Strategic Health Authorities for Specified Purposes Only)—

(6) in column (1), add the following entry—

“ “Mental Health Act 1983—

• section 130A ” ;

(a) in column (2), add the following entry—

“ Making such arrangements as considered reasonable to enable independent mental health advocates to help qualifying patients ” .

Independent Mental Health Advocates: conditions

6. —(1) A person may not act as an IMHA unless the conditions specified in paragraph (2) are satisfied.

(2) Those conditions are that the person referred to in paragraph (1)—

(a) has appropriate experience or training or an appropriate combination of experience and training;

(b) is a person of integrity and good character;

(c) is able to act independently of any person who is professionally concerned with the qualifying patient’s medical treatment; and

(d) is able to act independently of any person who requests that person to visit or interview the qualifying patient.

(3) For the purposes of the condition referred to in paragraph (2)(a) regard must be had to standards in guidance that may be issued from time to time by the Secretary of State.

(4) The standards referred to in paragraph (3) may include any qualification that the Secretary of State may determine as appropriate.

(5) For the purposes of the condition referred to in paragraph (2)(b) there must be obtained in respect of that person—

(a) an enhanced criminal record certificate issued pursuant to section 113B of the Police Act 1997( 6 ) (enhanced criminal record certificates); or

(b) if the purpose for which the certificate is required is not one prescribed under subsection (2) of that section, a criminal record certificate issued pursuant to section 113A of that Act (criminal record certificates).

Persons not professionally concerned with a patient’s medical treatment

7. For the purposes of section 130A(5) of the Act a person is not to be regarded as professionally concerned with a qualifying patient’s medical treatment if that person—

(a) is representing the patient in accordance with—

(i) arrangements made for the purposes of section 130A functions;

(ii) arrangements made other than for the purposes of that section;

(b) has in the past represented the qualifying patient in accordance with arrangements referred to in sub-paragraph (a) and in doing so was not otherwise professionally concerned in that patient’s treatment.