Section 44 — Advance choice documents

(1) The Mental Health Act 1983 is amended as follows.

(2) After section 130L insert— Advance choice documents: England 130M (1) NHS England and each integrated care board must make such arrangements as it considers appropriate for— (a) making information about advance choice documents available to people for whom it is responsible for the purposes of this section, (b) helping such of those people as it considers appropriate to create advance choice documents, and (c) bringing the availability of that information and help to the attention of such people as it considers appropriate. (2) The arrangements that must be made under subsection (1) include such arrangements as NHS England or the integrated care board considers appropriate for people to be given information or help by having a conversation with someone who is suitably qualified, whether in-person or remotely. (3) In deciding how to discharge the duty under subsection (1), NHS England or an integrated care board must have regard to the particular benefits to a person of making an advance choice document within 12 months of their discharge from a hospital or a registered establishment where they were receiving medical treatment for, or assessment in relation to, mental disorder. (4) For the purposes of this section— (a) NHS England is “responsible” for any people for whom it is required to arrange the provision of services or facilities by virtue of section 3B(1)(c) of the National Health Service Act 2006 (prisoners etc); (b) an integrated care board is “responsible” for anyone not within paragraph (a) who falls within the group of people for whom the board has core responsibility (as to which, see section 14Z31 of the National Health Service Act 2006). (5) An “advance choice document” is a written statement made by a qualifying person specifying their decisions, wishes or feelings about any relevant matter that may arise in the event that— (a) at some future time— (i) consideration is given to the person’s admission to hospital or a registered establishment as an in-patient either for medical treatment for mental disorder or for assessment in relation to mental disorder, or (ii) the person is detained under this Act, or given medical treatment for mental disorder as an in-patient in hospital, and (b) at that time, the person lacks capacity or competence in relation to that matter. (6) For the purposes of subsection (5)— (a) “qualifying person” means a person who has capacity or competence to make the statement, (b) “relevant matter”, in relation to a qualifying person, means a matter relating to, or arising as a consequence of— (i) consideration of an application for the person’s admission for assessment or treatment, or (ii) the person’s detention under this Act, or their medical treatment for a mental disorder as an in-patient in hospital, and (c) a reference to lacking capacity is to lacking capacity within the meaning of the Mental Capacity Act 2005; and a reference to having capacity is to be read accordingly. Advance choice documents: Wales 130N (1) Each Local Health Board must make such arrangements in relation to its area as it considers appropriate for— (a) making available information about advance choice documents, (b) helping such of those people as it considers appropriate to create advance choice documents, and (c) bringing the availability of that information and help to the attention of such people as it considers appropriate. (2) The arrangements that must be made under subsection (1) include such arrangements as the Local Health Board considers appropriate for people to be given information or help by having a conversation with someone who is suitably qualified, whether in-person or remotely. (3) In deciding how to discharge the duty under subsection (1), a Local Health Board must have regard to the particular benefits to a person of making an advance choice document within 12 months of their discharge from a hospital or a registered establishment where they were receiving medical treatment for, or assessment in relation to, mental disorder. (4) In this section “advance choice document” has the meaning given by section 130M(5).

(3) In section 118 (code of practice), in subsection (1), after paragraph (e) (as inserted by section 18 of this Act) insert— (f) for the guidance of NHS England, integrated care boards and Local Health Boards in relation to their functions under section 130M or 130N.”