Mental Health (Jersey) Law 1969

Revised Edition

20.650

Showing the law as at 1 January 2013 (re-issued 1 April 2015)

This is a revised edition of the law

Mental Health (Jersey) Law 1969

Arrangement

Article

PART 1

PRELIMINARY

1            Interpretation

2            Mental Health Review Tribunal

3            Functions of the Minister in relation to this Law

4            Informal admission of patients

PART 2

COMPULSORY ADMISSION TO HOSPITAL AND GUARDIANSHIP

Application

5            Application of Part 2

Procedure for hospital admission

6            Admission for observation

7            Admission for treatment

8            General provisions as to applications

9            General provisions as to medical recommendations

10          Emergency admission

10A          Power of nurse to detain

11          Applications in respect of patients already in hospital

12          Effect of application for admission

13          Rectification of application and recommendations

Procedure for reception into guardianship

14          Application for guardianship

15          Provisions as to persons requiring special care

16          Effect of guardianship application etc.

Care and treatment of patients

17          Appointment of medical attendant

18          Correspondence of patients

19          Visiting and examination of patients

20          Leave of absence from hospital

21          Return and re-admission of patients absent without leave

22          Provisions as to transfer of patients

23          Transfer of guardianship in case of death, incapacity etc. of guardian

Duration of authority for detention or guardianship and discharge of patients

24          Duration of authority

25          Special provisions as to patients absent without leave

26          Special provisions as to patients sentenced to imprisonment etc.

27          Discharge of patients

28          Restrictions on discharge by nearest relative

Functions of relatives of patients

29          Definition of relative and nearest relative

30          Infants in care

31          Children and young persons in care

32          Nearest relative of minor under guardianship, etc.

33          Discharge and variation of orders under Article 32

Supplemental

34          Duty of officer to make application for admission or guardianship

PART 3

REMOVAL from and reception into jersey of patients

35          Removal of patient to another place in the British Islands: reciprocal arrangements

35A          Removal of patient to another place in the British Islands: no reciprocal arrangements

35B          Removal of alien patient

35C          Role of Tribunal

35D          Reception of patient removed from another place in the British Islands

PART 4

MISCELLANEOUS AND GENERAL

Offences

36          Forgery, false statement etc.

37          Ill-treatment of patients

38          Protection of female patients

39          Assisting patients to absent themselves without leave etc.

40          Obstruction

Miscellaneous provisions

41          Religious persuasion of patients

42          Provision of pocket money for in-patients in hospital

43          Modification of curatelle procedure, and provisions as to the management and administration of the property and affairs of patients

44          Pay, pensions etc. of patients

45          Correspondence of patients not subject to detention

46          Warrant to search for and remove patients

47          Mentally disordered persons and addicts found in public places

48          Provisions as to custody, conveyance and detention

49          Retaking of patients escaping from custody

50          Protection for acts done in pursuance of this Law

51          Procedure on applications to the Court

52          Orders

53          Citation

SCHEDULE 1

MENTAL HEALTH REVIEW TRIBUNAL

PART 1

CONSTITUTION

PART 2

PROCEDURE

SCHEDULE 2

OATH OF CURATORS

Supporting Documents

Endnotes

Table of Legislation History

Table of Renumbered Provisions

Table of Endnote References



Mental Health (Jersey) Law 1969[1]

A LAW to provide for the treatment of mentally disordered persons and for connected purposes

Commencement [see endnotes]

PART 1

PRELIMINARY

1      Interpretation

(1)    In this Law, unless the context otherwise requires –

“absent without leave” means absent from a hospital or other place and liable to be taken into custody and returned under this Law;

“addict” means a person who habitually and intemperately drinks intoxicating liquor or who habitually takes or uses, otherwise than on medical advice, any drug to which any provision of the Misuse of Drugs (Jersey) Law 1978[2] applies;

“alien” means a person other than a person who has the right of abode in Jersey pursuant to section 2(1) of the Immigration Act 1971 (c.77) of the United Kingdom as extended to Jersey by the Immigration (Jersey) Order 1993[3];

“application for admission for observation” has the meaning assigned to it by Article 6(1);

“application for admission for treatment” has the meaning assigned to it by Article 7(1);

“child” means a person who has not attained the age of majority;

“Court” means the Inferior Number of the Royal Court;

“enactment” includes an enactment of the Parliament of the United Kingdom;

“guardian” in relation to a child, includes either of the parents or any person who for the time being has care of the child;

“guardianship application” has the meaning assigned to it by Article 14(1);

“hospital” means any institution administered by the Minister which provides treatment for persons suffering from illness, mental disorder or addiction;

“medical recommendations” has the meaning assigned to it by Article 9(1);

“medical treatment” includes nursing, and includes also care and training under medical supervision;

“mental disorder” means mental illness, arrested or incomplete development of mind and any other disability or disorder of mind, and the expression “mentally disordered” shall be construed accordingly;

“mental nursing home” has the same meaning as in the Nursing and Residential Homes (Jersey) Law 1994;[4]

“Minister” means the Minister for Health and Social Services;

“nearest relative” has the meaning assigned to it by Article 29(3);

“officer” except in Article 2, means a person authorized by the Minister for the purposes of this Law;

“order for discharge” has the meaning assigned to it by Article 27(1);

“parent”, in relation to a child, includes any person who is not his or her parent but who has parental responsibility for the child (within the meaning of the Children (Jersey) Law 2002[5]) or care of the child;

“patient” means a person suffering or appearing to be suffering from mental disorder or from addiction and, in the provisions of this Law relating to guardianship, includes a person requiring special care;

“person requiring special care” means a person suffering from arrested or incomplete development of mind, whether arising from inherent causes or induced by disease or injury, which renders the person socially inefficient to such an extent that the person requires supervision, training or control in the person’s own interests or for the protection of other persons;

“place of safety” means –

(a)     in relation to a person other than a child, a police station or other place of detention, or any hospital into which the Minister is willing temporarily to receive the person; and

(b)     in relation to a child, any institution provided by or under the authority of the States into which the Minister having charge of the institution is willing temporarily to receive the child, or any hospital into which the Minister is willing temporarily to receive the child;

“prescribed” means prescribed by Order made by the Minister under Article 52;

“president” means the chairman, vice-chairman or deputy chairman of the Tribunal;

“registered medical practitioner” has the same meaning as in the Medical Practitioners (Registration) (Jersey) Law 1960;[6]

“relative” has the meaning assigned to it by Article 29(1);

“responsible medical officer” means –

(a)     in relation to a patient liable to be detained by virtue of an application for admission for observation or an application for admission for treatment, the registered medical practitioner in charge of the treatment of the patient;

(b)     in relation to a patient subject to guardianship, the Medical Officer of Health or any other registered medical practitioner authorized by the Minister to act, either generally or in any particular case or for any particular purpose, as the responsible medical officer;

“school” means an institution, whether administered by the Minister for Education, Sport and Culture or not, for providing primary or secondary education or both primary and secondary education;

“working day” means any day other than a Saturday, Sunday, Good Friday, Christmas Day or any day appointed as a public holiday or bank holiday under Article 2 of the Public Holidays and Bank Holidays (Jersey) Law 1951[7].[8]

(2)    For the purposes of this Law, a person shall be deemed to be socially inefficient if –

(a)     the person is incapable of living an independent life;

(b)     the person is incapable of guarding himself or herself against common physical dangers;

(c)     the person is incapable of managing himself or herself or his or her affairs, or, being a child, is incapable of being taught to do so; or

(d)     being a child, he or she has been found unsuitable for ordinary education at school.

(3)    References in this Law to any other enactment shall be construed as references thereto as amended by or under any subsequent enactment.

(4)    Nothing in this Law shall be construed as implying that a person may be dealt with under this Law, as suffering from mental disorder, by reason only of promiscuity or other immoral conduct.

2      Mental Health Review Tribunal

(1)    There shall be constituted a tribunal to be called the Mental Health Review Tribunal (in this Law referred to as the “Tribunal”) for the purpose of dealing with applications and references by and in respect of patients under the provisions of this Law.[9]

(2)    The provisions of –

(a)     Part 1 of Schedule 1 shall have effect with respect to the constitution; and

(b)     Part 2 of Schedule 1 shall have effect with respect to the procedure,

of the Tribunal.

(3)    The Minister shall establish and pay rates of remuneration for members of the Tribunal and defray such expenses of the Tribunal as the Minister determines.[10]

(3A)      The Minister may provide from any administration of the States for which he or she is assigned responsibility such officers and servants, and such accommodation, as the Tribunal may require.

(4)    The States may by Regulations amend Schedule 1.

3      Functions of the Minister in relation to this Law

(1)    The Minister shall appoint such medical and other officers and persons as may from time to time be necessary for the purpose of carrying this Law into effect.

(2)    The Minister may make arrangements for the purpose of the care of persons suffering from mental disorder or addiction or for the after-care of persons who have been so suffering, and for persons requiring special care, including arrangements for the following purposes, that is to say –

(a)     the provision, equipment and maintenance of residential accommodation, and the care of persons for the time being resident in accommodation so provided;

(b)     for the provision of centres or other facilities for the training, occupation and employment of such persons, and the equipment and maintenance of such centres or facilities;

(c)     the provision of any ancillary or supplementary services designed –

(i)     for the better promotion of mental health,

(ii)    for the prevention of mental disorder or addiction,

(iii)   for promoting the better care and treatment of persons suffering from mental disorder or addiction and for the welfare of such persons,

(iv)   for promoting the welfare of persons requiring special care.

4      Informal admission of patients

Nothing in this Law shall be construed as preventing a patient who requires or wishes to receive treatment for mental disorder or for addiction –

(a)     from being admitted to any hospital or mental nursing home if the responsible medical officer of that hospital or mental nursing home is willing to receive the patient without any application or authority rendering the patient liable to be detained under this Law;

(b)     from remaining, with the consent of the responsible medical officer, in any hospital or mental nursing home after he or she has ceased to so liable; or

(c)     from taking his or her discharge from any hospital at any time when he or she is not liable to be detained under this Law.[11]

PART 2

COMPULSORY ADMISSION TO HOSPITAL AND GUARDIANSHIP

Application

5      Application of Part 2

Except where otherwise expressly provided, this Part shall apply in relation to a mental nursing home to which persons liable to be detained under this Part are admitted as it applies to a hospital, and reference in this Part to a hospital, and any reference in this Law to a hospital to which this Part applies, shall be construed accordingly.

Procedure for hospital admission

6      Admission for observation

(1)    A patient may be admitted to a hospital and there detained for the period allowed by this Article in pursuance of an application (in this Law referred to as an “application for admission for observation”) made in accordance with the following provisions of this Article.

(2)    An application for admission for observation may be made in respect of a patient on the grounds –

(a)     that the patient is suffering from mental disorder or, as the case may be, from addiction of a nature or degree which warrants the patient’s detention in hospital under observation (with or without other medical treatment) for at least a limited period; and

(b)     that the patient ought to be so detained in the interests of the patient’s own health or safety, or with a view to the protection of other persons.

(3)    An application for admission for observation shall be founded on the written recommendations in the prescribed form of 2 registered medical practitioners, including in each case a statement that in the opinion of the registered medical practitioner the grounds set out in paragraph (2)(a) and (b) apply.

(4)    Subject to the provisions of Article 32 (in a case where an application is made under that Article for transferring the functions of the nearest relative of the patient), a patient admitted to hospital in pursuance of an application for admission for observation may be detained for a period not exceeding 28 days beginning with the day on which the patient is admitted, but shall not be detained thereafter unless, before the expiration of that period, the patient has become liable to be detained by virtue of a subsequent application or authority under any other provision of this Law or of any other enactment.

7      Admission for treatment

(1)    A patient may be admitted to a hospital, and there detained for a period allowed by the provisions of this Law, in pursuance of an application, (in this Law referred to as an “application for admission for treatment”) made in accordance with the following provisions of this Article.

(2)    An application for admission for treatment may be made in respect of a patient on the grounds –

(a)     that the patient is suffering from mental disorder or, as the case may be, from addiction, and that the said disorder or addiction is of a nature or degree which warrants the detention of the patient in hospital for medical treatment under this Article; and

(b)     that it is necessary in the interests of the health or safety of the patient, or for the protection of other persons that the patient should be so detained.

(3)    An application for admission for treatment shall be founded on the written recommendations in the prescribed form of 2 registered medical practitioners, including in each case a statement that in the opinion of the registered medical practitioner the grounds set out in paragraph (2)(a) and (b) apply, and each such recommendation shall include –

(a)     such particulars as may be prescribed of the reasons for that opinion so far as it relates to the grounds set out in paragraph (2)(a); and

(b)     a statement of the reasons for that opinion so far as it relates to the grounds set out in paragraph (2)(b), specifying whether other methods for dealing with the patient are available, and if so why such other methods are not appropriate.

8      General provisions as to applications

(1)    Subject to the provisions of this Article, an application for the admission of a patient for observation or for treatment may be made to the Minister –

(a)     by the patient’s curator where the patient is an interdict;

(b)     by the patient’s nearest relative;

(c)     by the Connétable of the parish in which the patient resides; or

(d)     by an officer,

and shall specify the name of the applicant and the capacity in which the application is made.[12]

(2)    An application for admission of a patient shall not be made by a Connétable or an officer except after consultation with the person (if any) appearing to be the nearest relative of the patient unless it appears to the Connétable or the officer, as the case may be, that such consultation is not reasonably practicable or would involve unreasonable delay.[13]

(3)    No application for the admission of a patient shall be made by any person unless that person has personally seen the patient within the period of 14 days ending with the date of the application.

(4)    An application for the admission of a patient shall be sufficient if the recommendations on which it is founded are given either as separate recommendations, each signed by a registered medical practitioner, or as a joint recommendation signed by 2 registered medical practitioners.

9      General provisions as to medical recommendations

(1)    The recommendations required for the purposes of an application for the admission of a patient under this Part (in this Law referred to as “medical recommendations”) shall be signed on or before the date of the application, and shall be given by registered medical practitioners who have personally examined the patient either together or at an interval of not more than 7 days.

(2)    Of the medical recommendations given for the purposes of this Part, one shall be given, wherever practicable, by a registered medical practitioner having special experience in the diagnosis or treatment of mental disorder or, as the case may be, in the treatment of addiction and, unless that registered medical practitioner has previous acquaintance with the patient, the other such recommendation shall be given, wherever practicable, by a registered medical practitioner who has such previous acquaintance.

(3)    Where an application is for the admission of a patient to a hospital not being a mental nursing home, the medical recommendations may be given by registered medical practitioners on the staff of the hospital and, in such a case, the provisions of paragraph (4) shall not apply.

(4)    Except as provided by paragraph (3), a medical recommendation for the purposes of an application for the admission of a patient under this Part shall not be given by any of the following persons, that is to say –

(a)     the applicant;

(b)     a partner of the applicant or of a registered medical practitioner by whom another medical recommendation is given for the purposes of the same application;

(c)     a person employed as an assistant by the applicant or by any such registered medical practitioner; or

(d)     a person who receives, or has an interest in the receipt of, any payments made on account of the maintenance of the patient,

or by the husband, wife, civil partner, father, father-in-law, mother, mother-in-law, son, son-in-law, daughter, daughter-in-law, brother, brother-in-law, sister or sister-in-law of the patient, or of any such person as aforesaid, or of a registered medical practitioner by whom another medical recommendation is given for the purposes of the same application.[14]

10    Emergency admission

(1)    Where, in the opinion of either the responsible medical officer or another registered medical practitioner, there is an urgent necessity for a patient to which this Article applies to be detained on the grounds that –

(a)     it is likely that the patient is suffering from a mental disorder or addiction; and

(b)     to allow the patient to remain at liberty would endanger the patient’s own safety or the safety of other persons,

the patient may be detained under observation for a period not exceeding 72 hours from the time such opinion is formed.

(2)    This Article applies where a patient –

(a)     is brought to or presents himself or herself at a hospital; or

(b)     has been admitted to, or remains in, a hospital on an informal basis and does not consent to remain,

and an application for admission in accordance with Article 6 or 7 would involve undesirable delay.

(3)    In this Article “informal” shall be construed in accordance with Article 4.[15]

10A    Power of nurse to detain

(1)    If, in the case of a patient who is receiving treatment for a mental disorder or addiction as an in-patient in a hospital, other than a patient who is already liable to be detained under this Part, it appears to a nurse of such class as may be prescribed –

(a)     that the patient is suffering from a mental disorder or addiction and to allow the patient to remain at liberty would endanger the patient’s own safety or the safety of other persons; and

(b)     that it is not practicable to secure the immediate attendance of a registered medical practitioner,

the nurse may record that fact.

(2)    Where the fact described in paragraph (1) is recorded, the patient may be detained in the hospital for a period of up to 3 hours beginning at the time the record is made, but if a registered medical practitioner attends the patient during the third such hour, the patient may be detained for up to one hour from the start of the time when the registered medical officer so attends.[16]

11    Applications in respect of patients already in hospital

An application for the admission of a patient to a hospital may be made under the provisions of this Part –

(a)     in any case, notwithstanding that the patient is already an in-patient in a hospital, not being liable to be detained in pursuance of an application under this Part;

(b)     in the case of an application for admission for treatment, notwithstanding that the patient is for the time being liable to be detained in the hospital in pursuance of an application for observation;

(c)     in a case to which Article 10 applies,

and where an application is so made the patient shall be treated for the purposes of this Part as if the patient had been admitted to the hospital at the time when the application was received by the Minister.[17]

12    Effect of application for admission

(1)    An application for the admission of a patient to hospital under this Part shall be of no effect unless the application and the medical recommendations comply with that Part.[18]

(2)    An application for the admission of a patient to hospital under this Part shall be sufficient authority for the applicant, or any person authorized by the applicant, to take the patient and convey him or her to a hospital at any time within the period of 7 days beginning with the day on which the application was made.[19]

(3)    Where a patient is admitted within the said period to a hospital or, being within a hospital, is treated by virtue of the provisions of Article 11 as if the patient had been so admitted, the application for admission shall be sufficient authority for the patient to be detained in the hospital in accordance with the provisions of this Law.[20]

(4)    Any application for the admission of a patient to hospital under this Part which appears to be duly made and to be founded on the necessary medical recommendations may be acted on without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given, or of any matter of fact or opinion stated therein.

(5)    A patient who is for the time being liable to be detained under Article 6 or 7 shall cease to be so liable if the Tribunal, on application by the patient, directs the discharge of the patient.[21]

(6)    A patient who is admitted to a hospital in pursuance of an application for admission for observation may apply to the Tribunal within the period of 14 days beginning with the day on which the patient is so admitted, for a direction under paragraph (5).[22]

(7)    A patient who is admitted to a hospital in pursuance of an application for admission for treatment may apply to the Tribunal, within the period of 12 months beginning with the day on which the patient is so admitted, for a direction under paragraph (5).[23]

(8)    Where a patient is admitted to a hospital in pursuance of an application for admission for observation or treatment, any previous application under this Part by virtue of which the patient was liable to be detained in a hospital or subject to guardianship shall cease to have effect.[24]

13    Rectification of application and recommendations

(1)    Where, at any time after a patient has been admitted to hospital in pursuance of an application for admission under this Part, the application or any medical recommendation given for the purposes of the application is found to be in any respect incorrect or defective, the application or recommendation may, with the consent of the Minister, be amended by the person by whom the application or recommendation, as the case may be, was signed and, on such amendment being made, the application or recommendation shall have effect and shall be deemed to have had effect as if it had originally been made as so amended.[25]

(2)    Without prejudice to the provisions of paragraph (1), if at any time after a patient has been admitted to hospital as aforesaid it appears to the Minister that either of the medical recommendations on which an application for the admission of the patient was founded is insufficient to warrant the detention of the patient in pursuance of the application, the Minister may give notice in writing to that effect to the applicant and, where any such notice is given in respect of a medical recommendation, that recommendation shall be disregarded, but the application shall be, and shall be deemed always to have been, sufficient if –

(a)     a fresh medical recommendation complying with the relevant provisions of this Part, other than the provisions relating to the time of signature and the interval between examinations, is furnished to the Minister within the 14 days next following the day on which notice of the insufficiency was given by the Minister;

(b)     that recommendation, and the other recommendation on which the application is founded, together comply with those provisions.

(3)    Where the medical recommendations on which an application for admission is founded are, taken together, insufficient to warrant the detention of the patient in pursuance of the application, a notice under paragraph (2) may be given in respect of either of those recommendations.

Procedure for reception into guardianship

14    Application for guardianship

(1)    A patient may be received into guardianship, for the period allowed by the following provisions of this Law, in pursuance of an application (in this Law referred to as a “guardianship application”) made in accordance with the following provisions of this Article.

(2)    A guardianship application may be made in respect of a patient on the grounds that –

(a)     the patient is suffering from mental disorder or addiction and that the said disorder or addiction is of a nature or degree which warrants the reception of the patient into guardianship under this Law; and

(b)     it is necessary in the patient’s interests or for the protection of other persons that the patient should be so received.

(3)    The person named as guardian in a guardianship application may be either the Minister or any other person (including the applicant), but a guardianship application in which a person other than the Minister is named as guardian shall be of no effect unless the person so named is accepted by the Minister.

(4)    Every such application shall be delivered to the Minister and, except where the person so named is the Minister, shall be accompanied by a statement in writing by the person so named that he or she is willing to act as guardian.

(5)    A guardianship application shall be founded on the written recommendations in the prescribed form of 2 registered medical practitioners, including in each case a statement that in the opinion of the registered medical practitioner the grounds set out in paragraph (2)(a) or (b) apply, and each such recommendation shall include –

(a)     such particulars as may be prescribed of the reasons for that opinion so far as it relates to such grounds;

(b)     a statement of the reasons for that opinion.

(6)    Articles 8 and 9 shall apply to a guardianship application as they apply to an application for admission for treatment, with the insertion of –

(a)     after Article 8(1) the following paragraph –

“(1A)      A guardianship application shall not be made by a Constable or an officer if the nearest relative of the patient has notified the Constable or the officer, as the case may be, that he objects to the application.”; and

(b)     after Article 9(4)(d) the following sub-paragraph –

“(e)     the person named as guardian in the application;”.[26]

15    Provisions as to persons requiring special care

(1)    Where it appears to a registered medical practitioner who has examined a person that steps should be taken, in the interests of that person or for the protection of other persons, to ascertain whether the person is a person requiring special care, it shall be the duty of the registered medical practitioner forthwith to notify the Minister.

(2)    A notification under the provisions of paragraph (1) shall include the following particulars, that is to say –

(a)     the name, age and sex of the person in respect of whom notification is given;

(b)     the address of the premises where the person is;

(c)     the name and address of the nearest relative of the person or, in the case of a child, of the parent of the child.

(3)    Where notification is given under the provisions of paragraph (1) in respect of a person, the Minister shall, where the notification relates to a child, inform the parent of the child and, where the notification relates to a person other than a child, inform that person and the person’s nearest relative, of the notification; and the Minister, where the notification relates –

(a)     to a child, may;

(b)     to a person other than a child, shall,

cause that person to be examined by 2 registered medical practitioners with a view to the making of the necessary medical recommendations for the admission into guardianship of that person.

(4)    Where, in pursuance of paragraph (3), the necessary medical recommendations are made in respect of a patient, the Minister shall notify the nearest relative of the patient of the making of the recommendations and, in such a case, it shall be the duty of the nearest relative of the patient, within the 14 days next following the day on which the nearest relative was so notified, to make a guardianship application in respect of the patient on the grounds set out in Article 14(2)(b), and, if the nearest relative fails to do so within the said period of 14 days, the nearest relative of the patient shall be guilty of an offence and shall be liable to a fine not exceeding £10.

(5)    In any case where –

(a)     a patient has no known nearest relative, or where it is not reasonably practicable or would involve unreasonable delay for information and notification as aforesaid to be given to the nearest relative of a patient, the Minister shall give such information and such notification to the Connétable of the parish in which the patient resides or to an officer, as the Minister may think fit; or

(b)     the nearest relative of a patient fails to make a guardianship application in respect of the patient in accordance with the provisions of paragraph (4), the Minister shall, after the expiration of the said period of 14 days, notify the Connétable or an officer as aforesaid of the default,

and, where notification is given under the provisions of this paragraph –

(i)     it shall be the duty of the Connétable or the officer, as the case may be, to make a guardianship application in respect of the patient;

(ii)    the provisions of Article 8(2) shall not apply in respect of the making of the guardianship application.

16    Effect of guardianship application etc.

(1)    A guardianship application under this Part shall be of no effect unless it is delivered to the Minister within 14 days beginning with the day on which the patient was last examined by a registered medical practitioner with a view to the making of a medical recommendation in connection with the application, and unless the Minister, having satisfied himself or herself that the application and the medical recommendations comply with the requirements of this Part, has approved the application, and an application so approved shall be sufficient authority for the taking into the guardianship of the person named as guardian in the application of the patient to whom the application relates, and a guardianship application so approved shall, subject to the provisions of any order made under Article 52, confer on the Minister or the person so named, to the exclusion of any other person, all such powers as would be exercisable by the Minister or the person in relation to the patient if the Minister or the person were the father of the patient and the patient were a child, and, in a case where the Minister is named as guardian, the Minister may, if in the Minister’s opinion the circumstances warrant the taking of such a course, require that the patient –

(a)     shall reside –

(i)     in a hospital or other institution administered by the Minister, or

(ii)    with such person as the Minister may think fit;

(b)     shall attend at such training centre as may be specified by the Minister, at such times or for such periods as may be so specified.

(1A)      A guardianship application so approved shall, subject to the provisions of any Order made under Article 52, in general confer on the person named in the application as guardian (whether that person is the Minister or another person), to the exclusion of any other person –

(a)     the power to require the patient to reside at a place specified by the person named as guardian or by an officer;

(b)     the power to require the patient to attend at places and times so specified for the purpose of medical treatment, occupation, education or training; and

(c)     the power to require access to the patient to be given, at any place where the patient is residing, to any registered medical practitioner, officer or other person so specified.[27]

(1B)      Where a patient who is for the time being subject to guardianship under this Law absents himself or herself without the leave of his or her guardian from the place at which the patient is required by the guardian to reside or to attend (or in fact is not yet at that place), the patient may be taken into custody and returned (or taken) to that place by the guardian, an officer, or by any person authorized in writing by the guardian.[28]

(2)    Where a guardianship application is made in respect of a person under the provisions of Article 15, the limitation on the time for the delivery of such an application specified in paragraph (1) of this Article shall not apply.

(3)    A guardianship application which appears to be duly made and to be founded on the necessary medical recommendations may be acted on without further proof of the signature or qualification of the person by whom the application or any such medical recommendation is made or given, or of any matter of fact or opinion stated therein.

(4)    Where, at any time after a guardianship application has been approved by the Minister, the application, or any medical recommendation given for the purposes of the application, is found to be in any respect incorrect or defective, the application or recommendation may, with the consent of the Minister, be amended by the person by whom it was signed and, on such amendment being made, the application or recommendation shall have effect and shall be deemed to have had effect as if it had originally been made as so amended.

(5)    A patient who is received into guardianship in pursuance of a guardianship application may apply to the Tribunal, within the period of 12 months beginning with the day on which the application is approved, for a direction that the guardianship be terminated.[29]

(6)    Where a patient is received into guardianship in pursuance of a guardianship application, any previous application under this Part by virtue of which the patient was subject to guardianship or liable to be detained in a hospital shall cease to have effect.

Care and treatment of patients

17    Appointment of medical attendant

The Minister shall, in the case of every patient subject to the guardianship of a person other than the Minister, appoint a registered medical practitioner to act as the nominated medical attendant (hereinafter referred to as the “nominated medical attendant”) of the patient.

18    Correspondence of patients

(1)    Subject to the provisions of this Article, any postal packet addressed to a patient detained in a hospital under this Part may be withheld from the patient if, in the opinion of the responsible medical officer, it is necessary to do so for the health or safety of the patient or protection of other persons.[30]

(2)    Subject to the provisions of this Article, any postal packet addressed by a patient so detained and delivered by the patient for dispatch may be withheld from the Post Office –

(a)     if the addressee has given notice in writing to the Minister or to the responsible medical officer requesting that communications addressed to the addressee by the patient should be withheld; or

(b)     if it appears to the responsible medical officer that the packet would be unreasonably offensive to the addressee or is defamatory of other persons (not being persons on the staff of the hospital) or might cause danger to any person.[31]

(2A)      Paragraph (2) shall not apply to any postal packet addressed –

(a)     to the Minister;

(b)     to any officer of any of the Departments described in Article 1(1) of the Departments of the Judiciary and The Legislature (Jersey) Law 1965;[32]

(c)     to any member of the States;

(d)     to any court or tribunal, whether or not within Jersey;

(e)     to the patient’s legal adviser;

(f)     to any person having power to discharge the patient under this Part; or

(g)     to any other classes of persons as may be prescribed, subject to such conditions or limitations (if any) as may be prescribed.[33]

(3)    Nothing in paragraph (2)(b) shall be construed as authorizing a responsible medical officer to open or examine the contents of any postal packet unless the responsible medical officer is of opinion that the patient is suffering from mental disorder of a kind calculated or that the patient’s addiction is likely to lead him or her to send such communications as are referred to in that sub-paragraph.

(4)    Except as provided by this Article, it shall not be lawful to prevent or impede the delivery to a patient detained as aforesaid of any postal packet addressed to the patient and delivered by the Post Office, or the delivery to the Post Office of any postal packet addressed by such a patient and delivered by him or her for dispatch.

(5)    This Article shall apply in relation to a patient who is subject to guardianship under this Part as it applies in relation to a patient who is detained in a hospital thereunder, and as if –

(a)     for the reference to the Minister in paragraph (2)(a), except in a case where the Minister has been named as guardian, there were substituted a reference to the guardian; and

(b)     for any reference to the responsible medical officer there were substituted a reference to the guardian or any person authorized by the guardian to act for the purposes of this paragraph.

(5A)      Where any postal packet is withheld in accordance with paragraph (1) or (2)(b), the responsible medical officer shall, within 3 working days of the decision to withhold being made –

(a)     notify the patient and the sender or addressee, as the case may be, unless the giving of such notice would be counterproductive to the withholding of the postal packet; and

(b)     inform the persons notified of their rights under paragraph (5B).[34]

(5B)      The persons notified under paragraph (5A) may –

(a)     within 10 working days of receiving such notification, request a review by the president; and

(b)     make representations to the president which shall be in writing unless the president directs otherwise.[35]

(5C)      Within 7 working days of receiving a request in accordance with paragraph (5B), the president shall review the decision to withhold any postal packet together with any representations and may confirm, vary or reverse the decision.[36]

(6)    In this Article “postal packet” has the same meaning as in the Post Office Act 1953 of the United Kingdom.

19    Visiting and examination of patients

(1)    For the purpose of advising whether an application to the Tribunal should be made by or in respect of a patient who is liable to be detained or who is subject to guardianship under this Part, or of furnishing information as to the condition of a patient for the purposes of such an application, or of advising as to the exercise by the nearest relative of any such patient of any power to order the patient’s discharge, any registered medical practitioner authorized by or on behalf of the patient or other person who is entitled to make or has made the application, or by the nearest relative of the patient, as the case may be, may at any reasonable time visit the patient and examine him or her in private.

(2)    Where application is made to the Minister to exercise, in respect of a patient who is liable to be detained in a mental nursing home, any power to make an order for the patient’s discharge any registered medical practitioner authorized by the Minister may –

(a)     visit the patient at any reasonable time and examine him or her in private;

(b)     require the production of, and may inspect –

(i)     any documents constituting, or alleged to constitute, the authority for the detention of the patient under the provisions of this Part,

(ii)    any medical records relating to the treatment of the patient in the mental nursing home.

20    Leave of absence from hospital

(1)    The responsible medical officer may grant to any patient who is for the time being liable to be detained in a hospital under this Part leave to be absent from the hospital subject to such conditions (if any) as the responsible medical officer considers necessary in the interests of the patient or for the protection of other persons.

(2)    Leave of absence may be granted to a patient under this Article on specified occasions or for any specified period, and where leave is so granted for a specified period, that period may be extended by further leave granted in the absence of the patient.

(3)    Where it appears to the responsible medical officer that it is necessary so to do in the interests of the patient or for the protection of other persons, the responsible medical officer may, on granting leave of absence under this Article, direct that the patient shall remain in custody during the patient’s absence and, where leave of absence is so granted, the patient may be kept in the custody of any member of the staff of the hospital, or of any other person authorized in that behalf in writing by the responsible medical officer.

(4)    In any case where a patient is absent from a hospital in pursuance of leave of absence granted under this Article, and it appears to the responsible medical officer that it is necessary so to do in the interests of the patient’s health or safety or for the protection of other persons, the responsible medical officer may, subject to the provisions of paragraph (5), by notice in writing given to the patient or to the person for the time being in charge of the patient, revoke the leave of absence and recall the patient to the hospital.

(5)    A patient to whom leave of absence is granted under this Article shall not be recalled under the provisions of paragraph (4) after the patient has ceased to be liable to be detained under this Part and, without prejudice to any other provision of this Part, and such patient shall cease to be so liable at the expiration of the period of 6 months beginning with the first day of the patient’s absence on leave unless either –

(a)     the patient has returned to hospital, or has been transferred to another hospital under the following provisions of this Law, before the expiration of that period; or

(b)     the patient is absent without leave at the expiration of that period.

21    Return and re-admission of patients absent without leave

(1)    Where a patient who is for the time being liable to be detained under this Part in a hospital –

(a)     absents himself or herself from the hospital without leave granted under the provisions of Article 20;

(b)     fails to return to the hospital on any occasion on which, or at the expiration of any period for which, leave of absence was granted to the patient under that Article, or on being recalled thereunder; or

(c)     absents himself or herself without permission from any place where the patient is required to reside in accordance with conditions imposed on the grant of leave of absence under that Article,

the patient may, subject to the provisions of this Article, be taken into custody and returned to the hospital or place by any officer, by any police officer or by any member of the staff of the hospital.

(2)    Where a patient who is for the time being subject to guardianship under this Part absents himself or herself without the leave of the guardian from the place at which the patient is required by the guardian to reside, the patient may, subject to the provisions of this Article, be taken into custody and returned to that place by the guardian, any police officer, any person authorized in that behalf in writing by the guardian, or by any officer.

(3)    A patient shall not be taken into custody under the provisions of 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 or been taken into custody under the provisions of this Article within the said period shall cease to be liable to be detained or subject to guardianship, as the case may be, at the expiration of that period.

22    Provisions as to transfer of patients

(1)    The Minister may arrange for the transfer from one hospital to another of a patient who is liable to be detained in hospital by virtue of an application for admission.

(2)    Where a patient is transferred from one hospital to another by virtue of paragraph (1), the provisions of this Part shall apply to the patient as if –

(a)     the application for admission by virtue of which the patient was liable to be detained in hospital were an application for admission to the hospital to which the patient is transferred; and

(b)     the patient had been admitted to that hospital at the time when he or she was originally admitted in pursuance of the application.

(3)    The Minister may arrange for the transfer –

(a)     of a patient who is subject to guardianship under the provisions of this Part, from the guardianship of any person into the guardianship of any other person, or to a hospital;

(b)     of a patient who is liable to be detained in hospital by virtue of an application for admission, into the guardianship of any person.

(4)    Where a patient is transferred into the guardianship of another person by virtue of paragraph (3)(a), the provisions of this Part shall apply as if the guardianship application by virtue of which the patient is subject to guardianship under this Part were a guardianship application for the patient’s reception into the guardianship of that person and had been accepted at the time when it was originally accepted.

(5)    Where a patient is transferred to a hospital by virtue of paragraph (3)(a), the provisions of this Part shall apply as if –

(a)     the guardianship application by virtue of which the patient was subject to guardianship under this Part, were an application for admission to that hospital; and

(b)     the patient had been admitted to that hospital at the time when the guardianship application was originally accepted.

(6)    Where a patient is transferred into the guardianship of any person by virtue of paragraph (3)(b), the provisions of this Part shall apply as if the application for admission by virtue of which the patient was liable to be detained in hospital were a guardianship application duly accepted at the time when the patient was admitted to hospital in pursuance of the application.

(7)    A patient who is transferred from guardianship to a hospital by virtue of an arrangement under paragraph (3)(a), or is aware that such an arrangement for such a transfer has been made for him or her, may at any time apply to the Tribunal for a direction revoking the arrangement and –

(a)     reversing the transfer; or

(b)     making such other arrangement as the Tribunal thinks appropriate.[37]

23    Transfer of guardianship in case of death, incapacity etc. of guardian

(1)    A guardianship application under this Part of this Law shall be of no effect unless it is delivered to the Minister within fourteen days beginning with the day on which the patient was last examined by a registered medical practitioner with a view to the making of a medical recommendation in connexion with the application, and unless the Minister, having satisfied himself or herself that the application and the medical recommendations comply with the requirements of this Part of this Law, has approved the application, and an application so approved shall be sufficient authority for the taking in to the guardianship of the person named as guardian in the application of the patient to whom the application relates, and a guardianship application so approved shall, subject to the provisions of any order made under Article 59 of this Law, confer on the Minister or the person so named, to the exclusion of any other person, all such powers as would be exercisable by him or her in relation to the patient if he or she were the father of the patient and the patient were a child, and, in a case where the Minister is named as guardian, the Minister may, if in his or her opinion the circumstances warrant the taking of such a course, require that the patient –

(a)     shall reside –

(i)     in a hospital or other institution administered by the Minister, or

(ii)    with such person as the Minister may think fit;

(b)     shall attend at such training centre as may be specified by the Minister, at such times or for such periods as may be so specified.

(2)    If any person, not having given notice under the provisions of paragraph (1)(b), is incapacitated by illness or any other cause from performing the functions of guardian of the patient, those functions may, during the person’s incapacity, be performed on the person’s behalf by the Minister or by any other person approved for the purpose by the Minister.

(3)    Where it appears to the Minister that any person having the guardianship of a patient received into guardianship under the provisions of this Part of this Law has performed his or her functions negligently or in a manner contrary to the interest of the patient, the Minister may transfer the guardianship of the patient to himself or herself or to any other person approved by the Minister for the purpose.

(4)    Where the guardianship of a patient is transferred to the Minister or other person by or under this Article, the provisions of Article 22(4) shall apply as if the patient had been transferred into the guardianship of the Minister or that other person in pursuance of that Article.

Duration of authority for detention or guardianship and discharge of patients

24    Duration of authority

(1)    Subject to the following provisions of this Part, a patient admitted to hospital in pursuance of an application for admission for treatment, and a patient placed under guardianship in pursuance of a guardianship application, may be detained in a hospital or kept under guardianship for a period not exceeding one year beginning with the day on which the patient was so admitted, or the day on which the guardianship application was accepted, as the case may be, but shall not be so detained or kept for any longer period unless the authority for the patient’s detention or guardianship is renewed under the following provisions of this Article.

(2)    Authority for the detention or guardianship of a patient may, unless the patient has previously been discharged, be renewed under this Article –

(a)     from the expiration of the period referred to in paragraph (1), for a further period of one year;

(b)     from the expiration of any period of renewal under sub-paragraph (a), for a further period of 2 years,

and so on for periods of 2 years at a time.

(3)    Within the period of 2 months ending on the day on which a patient who is liable to be detained in pursuance of an application for admission would cease under the provisions of this Article to be so liable in default of the renewal of the authority for the patient’s detention, it shall be the duty of the responsible medical officer to examine the patient, and if it appears to the responsible medical officer that it is necessary in the interests of the patient’s health or safety or for the protection of other persons that the patient should continue to be liable to be detained, the responsible medical officer shall furnish to the Minister a report to that effect in the prescribed form.

(4)    Within the period of 2 months ending on the day on which a patient who is subject to guardianship under the provisions of this Part would cease under this Article to be so liable in default of the renewal of the authority for the patient’s guardianship, it shall be the duty –

(a)     where the patient is subject to the guardianship of the Minister, of the responsible medical officer;

(b)     in any other case, of the nominated medical attendant of the patient,

to examine the patient, and, if it appears to the medical officer or attendant that it is necessary in the interests of the patient or for the protection of other persons that the patient should remain under guardianship, the medical officer or attendant shall furnish to the guardian and, where the guardian is a person other than the Minister, to the Minister also a report to that effect in the prescribed form.

(5)    Where a report is duly furnished under the provisions of paragraph (3) or (4), the authority for the detention or guardianship of the patient shall be thereby renewed for the period prescribed in that case by paragraph (2).

(6)    Where a report under this Article is furnished in respect of a patient who has attained the age of 16 years, the Minister shall, unless he or she discharges the patient, cause the patient and his or her nearest relative to be informed of the action proposed to be taken, and the patient or his or her nearest relative may, within the period for which the authority for the patient’s detention or guardianship is renewed by virtue of the report, apply to the Tribunal.

25    Special provisions as to patients absent without leave

(1)    If on the day on which, apart from this Article, a patient would cease to be liable to be detained or subject to guardianship under this Part or, within the period of one week ending with that day, the patient is absent without leave, the patient shall not cease to be so liable or so subject –

(a)     in any case, until the expiration of the period during which the patient can be taken into custody under the provisions of Article 21, or the day on which the patient is returned or returns to the hospital or place where the patient ought to be, whichever is the earlier; and

(b)     if the patient is returned or returns as aforesaid within the period first mentioned in sub-paragraph (a), until the expiration of the period of one week beginning with the day on which the patient is returned or returns as aforesaid.

(2)    Where the period for which a patient is liable to be detained or subject to guardianship is extended by virtue of the provisions of this Article, the examination and report to be made and furnished under the provisions of Article 24(3) or (4)    may be made and furnished within that period as so extended.

(3)    Where the authority for the detention or guardianship of a patient is renewed by virtue of the provisions of this Article after the day on which, apart from this Article, that authority would have expired under the provisions of Article 24, the renewal shall take effect as from that day.

26    Special provisions as to patients sentenced to imprisonment etc.

(1)    Where a patient who is liable to be detained by virtue of an application for admission for treatment, or is subject to guardianship by virtue of a guardianship application, is detained in custody in pursuance of any sentence or order passed or made by a court in Jersey (including an order remanding the patient in custody), and is so detained for a period exceeding, or for successive periods exceeding in the aggregate, 6 months, the application shall cease to have effect at the expiration of that period.

(2)    Where any such patient is detained in custody as aforesaid but the application does not cease to have effect under the provisions of paragraph (1), then –

(a)     if apart from this paragraph the patient would have ceased to be liable to be detained or subject to guardianship as aforesaid on or before the day on which the patient is discharged from custody, the patient shall not cease and shall be deemed not to have ceased to be so liable or so subject until the end of that day;

(b)     in any case, Articles 21 and 25 shall apply in relation to the patient on his or her discharge from custody as if the patient had absented himself or herself without leave on the day on which he or she is so discharged.

27    Discharge of patients[38]

(1)    Subject to the provisions of this Article and of Article 28, a patient who is for the time being liable to be detained under this Law, or subject to guardianship under this Law, shall cease to be so liable or so subject if an order for discharge of the patient from detention or guardianship (as the case requires) is made by the responsible medical officer or by the patient’s nearest relative.

(2)    The responsible medical officer shall make an order for discharge under paragraph (1) if the responsible medical officer is satisfied –

(a)     that the patient is no longer suffering from mental disorder or from addiction (as the case may be); or

(b)     that, having regard to the care or supervision which would be available to the patient if he or she were discharged, it is not necessary in the interest of the patient’s health or safety, or for the protection of other persons, that the patient should continue to be liable to be detained or, as the case may be, subject to guardianship.

28    Restrictions on discharge by nearest relative

(1)    An order for the discharge of a patient who is liable to be detained in a hospital shall not be made by the patient’s nearest relative except after giving not less than 7 days notice in writing to the responsible medical officer and if, within the 7 days after such notice has been given, the responsible medical officer furnishes to the Minister a report certifying that in the opinion of that officer the patient, if discharged, would be likely to act in a manner dangerous to other persons or to himself or herself, or that officer is not satisfied that the patient, if discharged, would receive proper care; then –

(a)     any order for the discharge of the patient made by that relative in pursuance of the notice shall be of no effect; and

(b)     a further order for the discharge of the patient shall not be made by that relative during the period of 6 months beginning with the date of the report.

(2)    In any case where a report under paragraph (1) is furnished in respect of a patient, the Minister shall cause the nearest relative of the patient to be informed, and that relative may, within the period of 28 days beginning with the day on which he or she is so informed, apply to the Tribunal in respect of the patient.

Functions of relatives of patients

29    Definition of relative and nearest relative

(1)    In this Law “relative” means any of the following, that is to say –

(a)     husband or wife or civil partner;

(b)     son or daughter;

(c)     father;

(d)     mother;

(e)     brother or sister;

(f)     grandparent;

(g)     grandchild;

(h)     uncle or aunt;

(i)     nephew or niece.[39]

(2)    In deducing relationships for the purposes of this Article an adopted person shall be treated as the child of the person or persons by whom he or she was adopted and not as the child of any other person, and, subject as aforesaid, any relationship of the half-blood shall be treated as a relationship of the whole blood, and an illegitimate person shall be treated as the legitimate child of his or her mother.

(3)    In this Law, subject to the provisions of this Article and to the following provisions of this Part, the expression “nearest relative” means the person first described in paragraph (1) who is for the time being surviving, relatives of the whole blood being preferred to relatives of the same description of the half-blood and the elder or eldest of 2 or more relatives in any sub-paragraph of that paragraph being preferred to the other or others of those relatives, regardless of sex.

(4)    Where the person who, under the provisions of paragraph (3), would be the nearest relative of a patient –

(a)     is not ordinarily resident in Jersey;

(b)     being the husband or wife or civil partner of the patient, is permanently separated from the patient, either by agreement or under an order of a court, or has deserted or has been deserted by the patient for a period which has not come to an end; or

(c)     not being the husband, wife, civil partner, father or mother of the patient, is for the time being under 20 years of age,

the nearest relative of the patient shall be ascertained as if that person were dead.[40]

(5)    In this Article –

(a)     “adopted” means adopted in pursuance of an adoption order made by a court of competent jurisdiction in the British Islands;

(b)     “husband”, “wife” and “civil partner” include a person who is living with the patient as her husband, his wife or his or her civil partner, as the case may be (or, if the patient is for the time being an in-patient in a hospital, was so living until he or she was admitted), and has been or had been so living for a period of not less than 6 months:

Provided that a person shall not be treated by virtue of this definition as the nearest relative of a married patient or a patient who is in a civil partnership unless the husband or wife of the patient, or the civil partner of the patient, as the case may be, is disregarded by virtue of the provisions of paragraph (4)(b).[41]

30    Infants in care[42]

In any case where the rights and powers of a parent of a patient, being an infant, are vested in the Minister for Education, Sport and Culture or any other person by virtue of an order of a court, that Minister or person shall be deemed to be the nearest relative of the patient in preference to any person except the patient’s husband, wife or civil partner (if any).

31    Children and young persons in care[43]

Where a patient who is a child or young person in the care of the Minister by virtue of a care order within the meaning of the Children (Jersey) Law 2002[44], the Minister shall be deemed to be the nearest relative of the patient in preference to any person except the patient’s spouse (if any).

32    Nearest relative of minor under guardianship, etc.[45]

(1)    Where –

(a)     a guardian has been appointed for a person who has not yet attained the age of majority; or

(b)     a residence order (within the meaning of the Children (Jersey) Law 2002[46]) is in force with respect to such a person,

the guardian (or guardians where there is more than one) or the person named in the residence order shall, to the exclusion of any other person, be deemed to be his nearest relative.

(2)    Paragraph (4) of Article 29 of this Law shall apply in relation to a person who is, or who is one of the persons, deemed to be the nearest relative of a patient by virtue of this Article as it applies in relation to a person who would be the nearest relative under paragraph (3) of that Article.

(3)    In this Article “guardian” does not include a guardian under this Part of this Law.

33    Discharge and variation of orders under Article 32

(1)    An order made under Article 32 in respect of a patient may be discharged by the Court upon application made –

(a)     in any case, by the person having the functions of the nearest relative of the patient by virtue of the order;

(b)     where the order was made on the ground specified in Article 32(3)(a) or (b), or where the person who was the nearest relative of the patient when the order was made has ceased to be the patient’s nearest relative, on the application of the nearest relative of the patient.

(2)    An order made under Article 32 in respect of a patient may be varied by the Court, on the application of the person having the functions of the nearest relative by virtue of the order or on the application of an officer, by substituting for the first-mentioned person the Minister or any other person who, in the opinion of the Court, is a proper person to exercise those functions, being a person who is willing to do so.

(3)    If the person having the functions of the nearest relative of a patient by virtue of an order under Article 32 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 those provisions, the functions of the nearest relative under this Part shall not be exercisable by any person.

(4)    An order made under Article 32 shall, unless previously discharged under the provisions of paragraph (1), cease to have effect –

(a)     if the patient was on the date of the order liable to be detained in pursuance of an application for admission for treatment or subject to guardianship under this Part, or becomes so liable or so subject within the period of 3 months beginning with that date, when the patient ceases to be so liable or so subject, otherwise than on being transferred by virtue of the provisions of Article 22;

(b)     if the patient was not on the date of the order, and has not within the said period become, so liable or so subject, at the expiration of that period.

(5)    The discharge or variation under this Article of an order made under the provisions of Article 32 shall not affect the validity of anything previously done in pursuance of the order.

Supplemental

34    Duty of officer to make application for admission or guardianship

(1)    It shall be the duty of an officer to make an application for admission to hospital or a guardianship application in respect of a patient in any case where –

(a)     the officer is satisfied that such an application ought to be made; and

(b)     the officer is of the opinion, having regard to any wishes expressed by relatives of the patient or to any other relevant circumstances, that it is necessary or proper for the application to be made by the officer.

(2)    Nothing in this Article shall be construed as authorizing or requiring an application to be made by an officer in contravention of the provisions of Article 8(2), or as restricting the power of an officer to make any application under this Law.

PART 3

REMOVAL from and reception into jersey of patients[47]

35    Removal of patient to another place in the British Islands: reciprocal arrangements[48]

(1)    Subject to Article 35C, the Minister may authorize the removal of a patient for the time being liable to be detained under this Law from Jersey to another place in the British Islands if it appears to the Minister –

(a)     that such removal is in the interests of the patient;

(b)     that there is provision in that place corresponding to Article 35D for the reception of the patient from Jersey; and

(c)     that arrangements have been made for the patient’s admission in that place.

(2)    When authorizing the removal of a patient under paragraph (1), the Minister may give any necessary directions for the patient’s conveyance to the patient’s destination.

(3)    Where a patient is removed from Jersey pursuant to this Article, the application, order or direction by virtue of which he or she is liable to be detained under this Law shall cease to have effect when the patient is duly received in the other place in the British Islands pursuant to the arrangements mentioned in paragraph (1)(c).

35A    Removal of patient to another place in the British Islands: no reciprocal arrangements

(1)    Subject to Article 35C, the Minister may authorize the removal of a patient for the time being liable to be detained under this Law from Jersey to another place in the British Islands if it appears to the Minister –

(a)     that such removal is in the interests of the patient;

(b)     that there is no provision in that place corresponding to Article 35D for the reception of the patient from Jersey but that the patient is ordinarily resident there; and

(c)     that 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 the removal of a patient 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 other place in the British Islands; and

(b)     the detention of the patient in any place or on board any ship or aircraft until arrival at any specified port or place in that other place in the British Islands.

35B    Removal of alien patient

(1)    Subject to Article 35C, the Minister may authorize the removal from Jersey of a patient liable to be detained under this Law who is an alien if it appears to the Minister –

(a)     that 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 a removal under paragraph (1), the Minister may give such directions as the Minister thinks fit for –

(a)     the conveyance of the patient to the patient’s destination in the country or territory mentioned in that paragraph; and

(b)     the detention of the patient in any place or on board any ship or aircraft until arrival at any specified port or place in any such country or territory.

35C    Role of Tribunal

(1)    Where the Minister has authorized the removal of a patient from Jersey pursuant to Article 35, 35A or 35B, the Minister shall forthwith notify the Tribunal and the Tribunal shall review the authorization within 7 working days of receiving such notification.

(2)    A patient may not be removed from Jersey pursuant to Article 35, 35A or 35B unless the approval of the Tribunal has been obtained.

35D    Reception of patient removed from another place in the British Islands

(1)    This Article applies to a patient removed to Jersey from another place in the British Islands under an enactment corresponding to Article 35.

(2)    Where the patient is admitted to hospital in Jersey, this Law shall apply to that patient as if, on the date of admission, the patient had been so admitted pursuant to an application, order or direction made or given on that date under the provision in this Law corresponding to the enactment of the place from which the patient is removed by virtue of which he was liable to be detained there.

(3)    While being conveyed to the hospital referred to in paragraph (2), the patient shall be deemed to be in legal custody.

PART 4

MISCELLANEOUS AND GENERAL

Offences

36    Forgery, false statement etc.

(1)    Any person who, with intent to deceive, forges any of the following documents, that is to say –

(a)     any application under Part 2;

(b)     any medical recommendation or report under this Law; or

(c)     any other document required or authorized to be made for any of the purposes of this Law,

or who uses, allows any other person to use or makes or has in his or her possession any such document which the person knows to have been forged or any document so closely resembling any such document as to be calculated to deceive, shall be guilty of an offence.

(2)    Any person who wilfully makes a false entry or statement in any application, recommendation, report, record or other document required or authorized to be made for any of the purposes of this Law or, with intent to deceive, makes use of any such entry or statement which the person knows to be false, shall be guilty of an offence.

(3)    Any person guilty of an offence under this Article shall be liable to a fine not exceeding £100 or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment.

37    Ill-treatment of patients

(1)    It shall be an offence for any person being a member of the staff of, or otherwise employed in, a hospital or mental nursing home –

(a)     to ill-treat or wilfully neglect a patient for the time being receiving treatment for mental disorder or, as the case may be, for addiction, as an in-patient in that hospital or home; or

(b)     to ill-treat or wilfully neglect, on the premises of which the hospital or home forms part, a patient for the time being receiving such treatment there as an out-patient.

(2)    It shall be an offence for any individual to ill-treat or wilfully neglect a mentally disordered patient or a patient who is an addict who is for the time being subject to the individual’s guardianship under this Law or otherwise in the individual’s custody or care (whether by virtue of any legal or moral obligation or otherwise).

(3)    Any person guilty of an offence under this Article shall be liable to a fine not exceeding £100, or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment.

(4)    No proceedings shall be instituted for an offence under this Article except by, or with the consent of, the Attorney General.

38    Protection of female patients

(1)    In this Article, the expression “woman to whom this Article applies” means any woman or girl who –

(a)     is liable to be detained under the provisions of this Law; or

(b)     not being liable to be so detained, is –

(i)     receiving treatment in or at a hospital or mental nursing home, or

(ii)    is a person requiring special care.

(2)    Any person who –

(a)     has unlawful sexual intercourse with a woman to whom this Article applies;

(b)     procures any woman to whom this Article applies to have unlawful sexual intercourse with men or with any particular man;

(c)     causes or encourages the prostitution of any woman to whom this Article applies;

(d)     being the owner or occupier of any premises, or having, or acting or assisting in, the management or control of any premises, induces or knowingly suffers any woman to whom this Article applies to resort to, or to be in or on, those premises for the purposes of having unlawful sexual intercourse with men or any particular man; or

(e)     with intent that any woman to whom this Article applies should have unlawful sexual intercourse with men or with any particular man, takes or causes that woman to be taken out of the possession of, and against the will of, the woman’s parent or guardian or other person having the lawful care or charge of the woman,

shall, subject to the provisions of paragraph (3), be guilty of an offence and shall be liable to imprisonment for a term not exceeding 2 years.

(3)    A person shall not be guilty of an offence under paragraph (2) if the person proves that the person did not know and had no reason to suspect that the woman in respect of whom the offence is alleged was a woman to whom this Article applies.

(4)    Where a person charged with an offence under this Article relies on the exception contained in paragraph (3), proof of the exception shall lie on the person.

(5)    In any proceedings for an offence under this Article, it shall not be a defence to prove that the woman in respect of whom the offence is alleged consented to the commission of the offence.

(6)    Where a woman to whom this Article applies, not being liable to be detained under the provisions of this Law, is detained by any person, that woman, whether or not the woman consented to be so detained, shall be deemed for the purposes of Article 7 of the Loi (1895) modifiant le droit criminel[49] to be a woman or girl unlawfully detained.

(7)    Where, in proceedings against a person charged with rape, the Court is satisfied that the person charged is guilty of an offence under paragraph (2)(a) but is not satisfied that the person is guilty of rape, the Court may acquit the person of rape and find the person guilty of an offence under that sub-paragraph and the person shall be liable to be punished accordingly.

(8)    No proceedings for an offence under this Article shall be instituted except by, or with the consent of, the Attorney General.

39    Assisting patients to absent themselves without leave etc.

(1)    Any person who induces or knowingly assists any other person being liable to be detained in a hospital or mental nursing home, or being subject to guardianship, under the provisions of this Law, to absent himself or herself without leave shall be guilty of an offence.

(2)    Any person who knowingly harbours a patient who is absent without leave or is otherwise at large and liable to be retaken under the provisions of this Law, or gives the patient any assistance with intent to prevent, hinder or interfere with his or her being taken into custody or returned to the hospital or other place where he or she ought to be, shall be guilty of an offence.

(3)    Any person guilty of an offence under this Article shall be liable to a fine not exceeding £100 or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment.

40    Obstruction

(1)    Any person who refuses to allow the inspection of any premises or without reasonable cause refuses to allow the visiting, interviewing or examination of any person by a person authorized in that behalf by or under this Law or to produce for the inspection of any person so authorized any document or record the production of which is duly required by the authorized person, or otherwise obstructs any such person in the exercise of his or her functions under this Law, shall be guilty of an offence.

(2)    Without prejudice to the generality of paragraph (1), any person who insists on being present when requested to withdraw by a person authorized as aforesaid to interview or examine a person in private, shall be guilty of an offence.

(3)    Any person guilty of an offence under this Article shall be liable to a fine not exceeding £100 or to imprisonment for a term not exceeding 6 months or to both such fine and such imprisonment.

Miscellaneous provisions

41    Religious persuasion of patients

In any arrangements which may be made for the detention of a patient or for the patient’s reception into guardianship under the provisions of this Law, regard shall be had to the religious persuasion to which the patient belongs or appears to belong.

42    Provision of pocket money for in-patients in hospital

The Minister may pay to patients (whether liable to be detained or not) who are receiving treatment in hospitals wholly or mainly used for the treatment of persons suffering from mental disorder or addiction such amounts as the Minister thinks fit in respect of their occasional personal expenses where it appears to the Minister that they would otherwise be without resources to meet those expenses.

43    Modification of curatelle procedure, and provisions as to the management and administration of the property and affairs of patients

(1)    The grounds on which a curator may be appointed under this Article to manage and administer the property and affairs of a person are the same grounds as those on which, before the coming into force of this Law, a person might be placed under interdiction in respect of his or her person and property or in respect of the person’s property alone.

(2)    As from the date of the coming into force of this Law, the law, whether customary or enacted, relating to curatelles shall cease to have effect, except in so far as expressly provided by this Law.

(3)    Where a person is or has been admitted to a hospital or a mental nursing home, or received into guardianship, under the provisions of Part 2, and no person has been, or is deemed to have been, appointed under the provisions of this Law to manage and administer the property and affairs of that person, it shall be the duty of the Minister to report that fact to the Attorney General.

(4)    Where a person has been admitted to a hospital or a mental nursing home under the provisions of Article 4 and the responsible medical officer or the registered medical practitioner in charge of the person’s treatment, as the case may be, is of the opinion that that person is incapable, by reason of mental disorder or, as the case may be, of addiction, of managing and administering his or her property and affairs, and no person has been, or is deemed to have been, appointed under the provisions of this Law to manage the property and affairs of the person so admitted, it shall be the duty of the said responsible medical officer or the said registered medical practitioner, as the case may be, to report that opinion to the Minister, and the Minister shall thereupon forward any such report to the Attorney General.

(5)    Where the Attorney General –

(a)     receives a report, under the provisions of paragraph (3) or (4), in respect of any person; or

(b)     has reason to believe that any person is incapable of managing and administering his or her property and affairs,

the Attorney General shall apply to the Court for the appointment of a curator to manage and administer the property and affairs of that person.

(6)    Where an application is made to the Court under the provisions of paragraph (5), the Court shall fix a day for the hearing of the application and, for the purpose of assisting the Court in deciding on the application, the Attorney General may summon, and the Court itself may direct that there shall be summoned, before the Court such persons as the Attorney General or the Court, as the case may be, consider best fitted to assist the Court and, at the hearing, the Court may direct that any person so summoned shall be heard on oath, and the powers of the Court under this Article may be exercised notwithstanding that the person to whom the application relates is not present or represented at the hearing:

Provided that, where an application is made as aforesaid by reason of a report made to the Attorney General under the provisions of paragraph (3), the Court may accept the report as sufficient evidence of the need to appoint a curator and, in such a case, the Court shall not be required to fix a day for the hearing of the application.

(7)    The Court, after considering an application under paragraph (6) and after hearing such persons (if any) as may have been summoned in pursuance thereof, shall, if it is satisfied of the need so to do, appoint a curator who, before entering on the curator’s functions under this Article, shall take oath in the form set out in Schedule 2.

(7A)      For the avoidance of doubt it is hereby stated that the Viscount may be appointed, in his or her capacity as such, as curator under this Article.[50]

(8)    A curator shall cease to hold office on the death of the interdict, and the management and administration of the property and affairs of the interdict shall thereupon devolve on the legal personal representative of the interdict.

(9)    Where an interdict –

(a)     being a patient admitted to a hospital or a mental nursing home under the provisions of Article 4, discharges himself or herself therefrom; or

(b)     being a patient liable to be detained in a hospital or a mental nursing home, or subject to guardianship, under the provisions of Part 2, ceases to be so liable or so subject,

the Minister shall report the fact to the Attorney General who shall submit the report to the Court and, unless the Court shall otherwise order, the interdict shall be deemed to be reinstated and the curator shall thereupon cease to hold office.

(10)  An interdict may apply to the Court to be reinstated and, where the Court is satisfied that the grounds on which the curator was appointed no longer exist, the Court shall grant the application and the curator shall thereupon cease to hold office.[51]

(11)  A curator shall cease to hold office if, through the intermediary of the Attorney General, the curator delivers to the Court the curator’s resignation in writing and, in such a case, the Court, in accordance with the provisions of this Article, shall appoint some other person as curator.

(12)  Where, on a representation by the Attorney General, by the nearest relative of the interdict or by any other person who, in the opinion of the Court, may properly make such a representation, the Court is satisfied that a curator –

(a)     is guilty of misconduct;

(b)     has failed to carry out the curator’s duties under this Article; or

(c)     is incapable, by reason of mental or physical disability, of performing the curator’s duties under this Article,

or where a curator has been made bankrupt, or has appointed an attorney without whom the curator may not act in matters real or personal, the Court may discharge the curator from office and, in such a case, the Court, in accordance with the provisions of this Article, shall appoint some other person as curator.

(13)  Where, under the provisions of paragraph (11) or (12), the Court appoints a curator, the Judicial Greffier shall notify the person in whose place the curator was so appointed of the appointment.

(14)  For the purpose of any proceedings under the foregoing provisions of this Article, the Court shall sit in chambers.

(15)  Subject to the provisions of paragraph (17), a curator shall have power to do, or to secure the doing of, all such things in relation to the property and affairs of the interdict in respect of whom the curator is appointed as appear to the curator to be necessary or expedient –

(a)     for the maintenance or other benefit of the interdict;

(b)     for the maintenance or other benefit of the interdict’s family;

(c)     for making provision for other persons for whom, or for other purposes for which, the interdict might be expected to provide;

(d)     otherwise for the management and administration of the interdict’s property and affairs,

and, in the management and administration of the interdict’s property and affairs, the curator shall have regard to the interests of any creditors of the interdict and also to the desirability of making provision for any obligations of the interdict notwithstanding that such obligations may not be legally enforceable.

(16)  Without prejudice to the generality of the provisions of paragraph (15), a curator shall have power to do, or to secure the doing of, all such things as the curator may think fit for the purposes of that paragraph and, in particular, may arrange for or authorize –

(a)     the carrying on by a suitable person of any profession, trade or business of the interdict;

(b)     the dissolution of a partnership of which the interdict is a member;

(c)     the carrying out of any contract entered into by the interdict;

(d)     the reimbursement out of the property of the interdict, with or without interest, of money applied by any person –

(i)     in payment of the interdict’s debts, whether legally enforceable or not,

(ii)    for the maintenance or other benefit of the interdict,

(iii)   for the maintenance or other benefit of the interdict’s family,

(iv)   in making provision for other persons for whom, or for other purposes for which, the interdict might be expected to provide.

(17)  Where it appears to a curator to be necessary or expedient for any of the purposes of paragraph (15) to arrange for or authorize –

(a)     the sale, exchange, charging or other disposition of, or dealing with, any property of the interdict;

(b)     the acquisition of any property in the name, or on behalf, of the interdict;

(c)     the conduct of legal proceedings in the name, or on behalf, of the interdict including –

(i)     the presentation of a petition for divorce or nullity of marriage, for presumption of death and dissolution of marriage, or for judicial separation, or

(ii)    the presentation of an application for the dissolution or nullity of a civil partnership, or for a separation order in respect of civil partners;

(d)     the exercise of any power, including a power to consent, vested in the interdict, whether beneficially or as guardian or trustee or otherwise,

the curator shall apply to the Court for consent to the curator’s action setting out the grounds on which the curator considers such action to be necessary or expedient for any such purpose and the Court, except in a case where a power to be exercised under sub-paragraph (d) of this paragraph is a power of appointing trustees or retiring from a trust, shall appoint 2 Jurats to examine the application and the grounds on which it is founded and, if both the Jurats so appointed are satisfied that the proposed action of the curator is necessary or expedient as aforesaid, they shall deliver to the curator their consent in writing to the action to which the application relates, and, where both the Jurats so appointed are not satisfied, they shall submit to the Court a report in writing setting out their reasons for withholding their consent and the Court shall make such order in the matter as it thinks just:

Provided that where any property of the interdict consists of shares in a body corporate, the provisions of this paragraph shall not apply to the acquisition of new shares issued by way of rights or bonus to existing shareholders in the body corporate.[52]

(18)  Where an application to the Court under the provisions of paragraph (17) relates to the exercise of a power of appointing trustees or retiring from a trust, the Court shall consider the application and, where the Court gives consent to the application, the Court may make, in relation to the trust property, such vesting or other orders as the case may require.

(19)  A curator to whom a consent is delivered under paragraph (17) shall, within the 7 days next following the day on which the consent was delivered to the curator, deliver the same to the Judicial Greffier.

(20)  It shall be the duty of a curator –

(a)     to deliver to the Judicial Greffier –

(i)     within the 90 days next following the day on which the curator took oath under the provisions of paragraph (7), an inventory of all the property, real and personal, of the interdict,

(ii)    within the 30 days next following the expiration of the period of 12 months next following the day on which the curator took oath as aforesaid, and of each successive period of 12 months thereafter, a copy of the accounts in connection with the management and administration of the property and affairs of the interdict during that period of 12 months;

(b)     within the 30 days next following the day on which the curator ceased to hold office by virtue of the provisions –

(i)     of paragraph (8), to deliver to the Judicial Greffier and to the legal personal representative of the interdict,

(ii)    of paragraph (9) or (10), to deliver to the Judicial Greffier and to the interdict,

(iii)   of paragraph (11) or (12), to deliver to the Judicial Greffier and to the person appointed as curator in the curator’s place,

a copy of the accounts in connection with the management and administration of the property and affairs of the interdict for the period beginning with the day on which the curator took oath as aforesaid and ending with the day on which the curator so ceased to hold office,

and the inventory and every copy of accounts delivered in pursuance of this paragraph shall be verified by an affidavit sworn by the curator.

(21)  It shall be the duty of a curator, forthwith after delivery of a copy of accounts under the provisions of paragraph (20)(b) –

(a)     to deliver up all books, papers and other documents;

(b)     to pay any moneys,

held by the curator in connection with the management and administration of the property and affairs of the interdict, to the interdict, or to the legal personal representative of the interdict, or to the person appointed as curator in the curator’s place, as the case may require.

(22)  A curator shall be entitled to receive remuneration, payable out of the estate of the interdict, in accordance with such scales as may be fixed by rules of court.

(23)  If a curator fails to comply with any of the provisions of this Article the curator shall be liable to a fine not exceeding £100 and shall be liable also in respect of any damage suffered, by reason of such failure, by the interdict, or the interdict’s estate, as the case may be.

(24)  Where, in pursuance of paragraph (20), copies of accounts have been delivered to the Judicial Greffier, the accounts relating to the management and administration of the property and affairs of a particular interdict may be examined, and copies thereof taken, during ordinary office hours –

(a)     in any case –

(i)     by the interdict,

(ii)    by any person authorized in that behalf in writing by the interdict,

(iii)   by a curator appointed in respect of the interdict under the provisions of paragraph (11) or (12),

(iv)   where the interdict has died, by the interdict’s legal personal representative;

(b)     in the case of an interdict, other than an interdict in respect of whom a curator has been appointed in pursuance of paragraph (5)(b), by any person authorized in that behalf by the Minister;

(c)     in the case of an interdict admitted to a hospital or a mental nursing home in pursuance of Article 4, or liable to be detained in a hospital or a mental nursing home, or subject to guardianship, under the provisions of Part 2, by the nearest relative of the interdict or a person exercising the functions of the nearest relative by virtue of the provisions of Article 32, or by any person authorized in that behalf in writing by the nearest relative or by the person exercising the functions of the nearest relative as aforesaid.

44    Pay, pensions etc. of patients

(1)    Where a periodic payment falls to be made to any patient by way of pay, pension or otherwise in connection with the service or employment of the patient or any other person, and the payment falls to be made directly –

(a)     out of moneys provided by the States;

(b)     out of the Social Security Fund; or

(c)     out of public funds,

and the authority by whom the payment falls to be made is satisfied after considering medical evidence that the patient to whom it is payable is incapable by reason of mental disorder or addiction of managing and administering his or her property and affairs, may, instead of making the payment to the patient, apply it in accordance with the provisions of paragraph (2):

Provided that the provisions of this paragraph shall not apply in any case where a curator has been appointed to administer the property of the patient.

(2)    The authority, as aforesaid, may make the payment, or such part thereof, as it thinks fit, to the institution or person having care of the patient, to be applied for the benefit of the patient, and may pay the remainder (if any) or such part thereof as it thinks fit –

(a)     to or for the benefit of persons who appear to the authority to be members of the patient’s family or other persons for whom the patient might be expected to provide if he or she were not mentally disordered or, as the case may be, if the patient were not an addict; or

(b)     in reimbursement, with or without interest, of money applied by any person either in payment of the patient’s debts, whether legally enforceable or not, or for the maintenance or other benefit of the patient or such other persons as are mentioned in sub-paragraph (a).

(3)    In this Article the expression the “Social Security Fund” has the same meaning as in the Social Security (Jersey) Law 1974.[53]

45    Correspondence of patients not subject to detention

(1)    The provisions of Article 18 shall apply in relation to any patient who is receiving treatment for mental disorder or for addiction in a hospital or mental nursing home, having been admitted for the purpose but not being liable to be detained therein, as it applies in relation to a patient detained in a hospital under the provisions of Part 2.

(2)    In relation to any patient to whom it applies by virtue of this Article, Article 18 shall have effect as if any reference to the responsible medical officer included a reference to the registered medical practitioner in charge of the treatment of the patient.

46    Warrant to search for and remove patients

(1)    If it appears to the Bailiff on information on oath laid by an officer that there is reasonable cause to suspect that a person believed to be suffering from mental disorder or addiction –

(a)     has been, or is being, ill-treated, neglected or kept otherwise than under proper control, in any place; or

(b)     being unable to care for himself or herself, is living alone in any place,

the Bailiff may issue a warrant authorizing any police officer or officer named therein to enter, if need be by force, any premises specified in the warrant and to search for, and, if thought fit, to remove that person to a place of safety with a view to the making of an application in respect of the person under the provisions of Part 2, or of making other arrangements for the person’s treatment or care.

(2)    If it appears to the Bailiff, on information on oath laid by any person who is authorized by or under this Law to take a patient to any place, or to take into custody or retake a patient who is liable under the provisions of this Law to be so taken or retaken –

(a)     that there is reasonable cause to believe that the patient is to be found on certain premises; and

(b)     that admission to the premises has been refused or that a refusal of such admission is likely,

the Bailiff may issue a warrant authorizing any police officer or officer named therein to enter, if need be by force, any premises specified in the warrant and to search for and remove the patient.

(3)    A patient who is removed to a place of safety in the execution of a warrant issued under this Article may be detained there for a period not exceeding 72 hours.

(4)    Every warrant issued under the provisions of this Article, shall be addressed to, and executed by, the police officer or officer named therein and, at the time of executing the warrant, the person to whom it is addressed shall, except in the case of a warrant issued under the provisions of paragraph (2) be accompanied by a registered medical practitioner.

(5)    It shall not be necessary in any information or warrant under paragraph (1) to name the person concerned.

47    Mentally disordered persons and addicts found in public places

(1)    If a police officer finds in a place to which the public has access a person who appears to the police officer to be suffering from mental disorder or addiction and to be in immediate need of care or control, the police officer may, if the police officer thinks it necessary to do so in the interests of that person or for the protection of other persons, remove that person to a place of safety.

(2)    A person removed to a place of safety under this Article may be detained there for a period not exceeding 72 hours for the purpose of enabling the person to be examined by a registered medical practitioner and of making any necessary arrangements for the person’s treatment or care.

48    Provisions as to custody, conveyance and detention

(1)    Any person required or authorized by or by virtue of this Law to be conveyed to any place or to be kept in custody or detained in a place of safety while being so conveyed, detained or kept, as the case may be, shall be deemed to be in legal custody.

(2)    In this Article “convey” includes any other expression denoting removal from one place to another.

49    Retaking of patients escaping from custody

(1)    If any person being in legal custody by virtue of the provisions of Article 48 escapes, the person may, subject to the provisions of this Article, be retaken –

(a)     in any case, by the person who had the person’s custody immediately before the escape, or by any police officer or any officer;

(b)     if at the time of the escape the person was liable to be detained in a hospital or a mental nursing home or was subject to guardianship under this Law, by any other person who could take the person into custody under Article 21 if the person had absented himself or herself without leave.

(2)    Subject to the provisions of paragraph (6), a person who escapes as aforesaid when liable to be detained or subject to guardianship as mentioned in paragraph (1)(b) shall not be retaken under the provisions of this Article after the expiration of the period within which the person could be retaken under the provisions of Article 21 if the person had absented himself or herself without leave on the day of the escape, and the provisions of Article 21(3) shall apply with the necessary modifications accordingly.

(3)    Subject to the provisions of paragraph (6), a person who escapes while being taken to or detained in a place of safety under the provisions of Article 46 or 47 shall not be retaken under the provisions of this Article after the expiration of the period of 72 hours beginning with the time when the person escapes or the period during which the person is liable to be so detained, whichever expires first.

(4)    The provisions of this Article, so far as they relate to the escape of a person liable to be detained in a hospital or a mental nursing home, shall apply in relation to a person who escapes –

(a)     while being taken to or from a hospital or mental nursing home in pursuance of the provisions of Article 22; or

(b)     while in custody or while being taken to a hospital, mental nursing home or other place in pursuance of the provisions of Article 35,

as if the person were liable to be detained in that hospital or mental nursing home and, if the person had not previously been received therein, as if the person had been so received.

(5)    The provisions of Article 25 shall, with any necessary modifications, apply in relation to a patient who is at large and liable to be retaken by virtue of this Article as it applies in relation to a patient who is absent without leave within the meaning of Article 21, and references therein to Article 21 shall be construed accordingly.

(6)    The provisions of paragraphs (2) and (3) shall not apply –

(a)     in the case of an alien who is in custody in connection with the alien’s conveyance, in pursuance of Article 35, to a port or place outside the British Islands;

(b)     in the case of an alien or of a person not ordinarily resident in Jersey who, in pursuance of Article 35, is being removed to a port or place outside Jersey.

50    Protection for acts done in pursuance of this Law

(1)    No person shall be liable, whether on the ground of want of jurisdiction or on any other ground, to any civil or criminal proceedings to which the person would have been liable apart from the provisions of this Article in respect of any act purporting to be done in pursuance of this Law or any Order made thereunder, unless the act was done in bad faith or without reasonable care.

(2)    No civil or criminal proceedings shall be brought against any person in respect of any such act without the leave of the Superior Number of the Royal Court, and the Superior Number shall not give leave under this Article unless satisfied that there is a prima facie case for the contention that the person to be proceeded against has acted in bad faith or without reasonable care.

(3)    This Article shall not apply to proceedings for an offence under this Law, being proceedings which, under any provision of this Law, can be instituted only by or with the consent of the Attorney General.

51    Procedure on applications to the Court

(1)    The power to make rules of court under the Royal Court (Jersey) Law 1948,[54] shall include a power to make rules –

(a)     for the hearing and determination of applications under this Law otherwise than in open court;

(b)     for the admission on the hearing of such applications of evidence of such descriptions as may be specified in the rules notwithstanding anything to the contrary in any enactment or rule of law relating to the admissibility of evidence;

(c)     for the visiting and interviewing of patients in private by or under the directions of the Court;

(d)     for the purposes of proceedings under Article 43.

(2)    The provisions of Article 3(1) of the Official Publications (Jersey) Law 1960[55] shall apply to rules made under the provisions of this Article as it applies to enactments mentioned in that paragraph, and, accordingly, as soon as may be after such rules are made, the Judicial Greffier shall transmit a certified copy thereof to the Greffier of the States.

52    Orders

(1)    The Minister may make Orders for prescribing anything which, under this Law, is required or authorized to be prescribed, and otherwise for carrying this Law into effect.

(2)    Without prejudice to the generality of paragraph (1), Orders made thereunder –

(a)     may, subject to the provisions of Part 2, provide –

(i)     for regulating the exercise by the guardians of patients received into guardianship under Part 2 of their powers as such,

(ii)    for imposing on such guardians, in cases where the Minister is not the guardian, such duties as the Minister may consider necessary or expedient in the interests of such patients,

(iii)   for requiring such patients to be visited on behalf of the Minister on such occasions or at such intervals as may be prescribed;

(b)     may –

(i)     prescribe the form of any application, recommendation, report, order, notice or other document to be made or given under the provisions of this Law,

(ii)    prescribe the manner in which any such application, recommendation, report, order, notice or other document may be proved, and may provide for the service of any such application, recommendation, report, order, notice or other document,

(iii)   prescribe the register and other records to be kept in respect of patients liable to be detained, or subject to guardianship under Part 2,

(iv)   provide for furnishing or making available to such patients and to their relatives written statements of their rights and powers under this Law,

(v)    provide for the determination of the age of any person whose exact age cannot be ascertained by reference to the registers kept under the Marriage and Civil Status (Jersey) Law 2001,[56]

(vi)   provide for enabling the functions, under Part 2, of the nearest relative of a patient to be performed, in such circumstances and subject to such conditions (if any) as may be prescribed by any person authorized in that behalf by that relative;

(c)     may –

(i)     prescribe the circumstances in which, and the conditions under which, patients may be transferred under the provisions of Article 22,

(ii)    make provision for regulating the conveyance to their destination of patients authorized to be transferred by virtue of the provisions of Article 22(1).

(3)    The Subordinate Legislation (Jersey) Law 1960[57] shall apply to Orders made under this Law.

53    Citation

This Law may be cited as the Mental Health (Jersey) Law 1969.



SCHEDULE 1[58]

(Article 2)

MENTAL HEALTH REVIEW TRIBUNAL

PART 1

CONSTITUTION

1      Subject to the provisions of paragraph 3, the members of the Tribunal shall be appointed in manner following, that is to say –

(a)     the Bailiff shall appoint from among the advocates and solicitors of the Royal Court of not less than 5 years standing, a chairman and a vice-chairman;

(b)     the Bailiff, after consultation with the Minister, shall appoint a panel, not exceeding 8 in number, of registered medical practitioners (hereinafter referred to as the “medical members”);

(c)     the Bailiff, after consultation with the Minister, shall appoint a panel, not exceeding 8 in number, of persons having such experience in administration, such knowledge of social service or such other qualifications as the Bailiff considers suitable (hereinafter referred to as the “lay members”).

1A      If neither the chairman nor the vice-chairman is available to act, the Bailiff may appoint any person eligible for appointment under paragraph 1(a) to be a deputy chairman for the purpose of such proceedings or class or group of proceedings under this Law as the Bailiff may specify and paragraph 4 shall not apply to any such appointment.

2      The Bailiff, in consultation with the Minister, may from time to time review the constitution of the panels appointed in pursuance of paragraph 1(b) and (c) and may make such additions thereto and such deletions therefrom as may be considered necessary, so, however, that this paragraph shall not operate so as to authorize an increase in the maximum number of persons appointed to either of the said panels, as specified in the said sub-paragraphs.

3      The following persons shall be ineligible for inclusion in the panels mentioned in paragraph 1(b) and (c), namely, Jurats, members of the States, advocates and solicitors of the Royal Court and persons who hold any paid office or other office of profit under the Crown or the States or any administration of the States or any parochial authority.

4      A member of the Tribunal shall cease to hold office as such a member on the earliest of the following occasions –

(a)     at midnight on 31st December in the fifth year next following the year in which the member was appointed:

Provided that a member appointed to fill a casual vacancy shall hold office only until the day on which the person in whose place the member was appointed would have ceased to hold office;

(aa)     at midnight on 31st December immediately following the member’s 72nd birthday;

(b)     if the member tenders the member’s resignation in writing to the Bailiff;

(c)     if the member becomes bankrupt;

(d)     if the member appoints a special attorney without whom the member may not act in matters real or personal;

(e)     if the member becomes incapable, by reason of mental or physical disability, of exercising the member’s functions as a member;

(f)     if, without reasonable excuse, the member absents himself or herself from a sitting of the Tribunal at which the member is summoned to attend.

PART 2

PROCEDURE

5      Subject to rules made under paragraph 10, the members who are to constitute the Tribunal for the purposes of any proceedings, or any class or group of proceedings, under this Law shall be appointed by the chairman or, if the chairman is not available to act, by the vice-chairman or, if neither the chairman nor the vice-chairman is available to act, the deputy chairman; and, at any sitting, the Tribunal shall be composed of –

(a)     a president;

(b)     one medical member;

(c)     one lay member:

Provided that a person shall not be qualified to serve as a member of the Tribunal to consider an application or a reference where the person has any interest in the patient to whom the application or the reference relates.

6      Where, under any provision of this Law, an application to the Tribunal is authorized to be made by or in respect of any patient, the application shall be made by notice in writing addressed to the chairman of the Tribunal, and the relevant hearing by the Tribunal shall commence –

(a)     as soon as practicable, in the case of an application under Article 12(6);

(b)     in accordance with Article 35C, in the case of a review under that Article; or

(c)     within 3 months after the application is made, in every other case.

7      

(1)    Except as expressly provided by this Law, no application may be made to the Tribunal by or in respect of a patient.

(2)    Where, under any provision of this Law, an application may only be made to the Tribunal within a specified period, a person may not under that provision make more than one application in respect of the same patient within that period.

(3)    Sub-paragraph (2) does not prevent a person from making another application under the same provision and in respect of the same patient within that period if any other application made within that period by the person under that provision and in respect of that patient has been withdrawn.

8      Where application is made to the Tribunal by or in respect of a patient who –

(a)     is liable to be detained under this Law, the Tribunal may in any case direct that the patient be discharged, and shall so direct if it is not satisfied that –

(i)     that the patient is then suffering from mental disorder or addiction, or

(ii)    that it is necessary in the interest of the patient’s health or safety or for the protection of other persons that the patient should continue to be liable to be detained; or

(b)     is subject to guardianship under the provisions of this Law, the Tribunal may in any case direct that the patient be discharged, and shall so direct if it is not satisfied that –

(i)     the patient is then suffering from mental disorder or addiction,

(ii)    the patient still requires special care, or

(iii)   it is necessary in the interests of the patient, or for the protection of other persons, that the patient should remain in guardianship.

9      Where a patient is liable to be detained or is subject to guardianship under this Law, the Minister or the Attorney General –

(a)     in the case of a patient who is a child who, in the opinion of the Minister or the Attorney General as the case may be, has insufficient mental capacity to make an application, shall; and

(b)     in the case of any other patient, may if the Minister or the Attorney General as the case may be thinks fit,

refer the case to the Tribunal who shall deal with any such reference as if it were an application under paragraph 8.

9A      Where the Tribunal reviews the authorization to remove a patient from Jersey under Article 35C, it shall not approve the removal unless it is satisfied that the conditions of Article 35, 35A or 35B, as the case may be, are met.

10    The Minister may by Order make provision with respect to the making of applications to the Tribunal, and with respect to the proceedings of the Tribunal and matters incidental thereto, or consequential on, such proceedings and, without prejudice to the generality of the foregoing provisions of this paragraph, any such Order may make provision –

(a)     for enabling the Tribunal, or the chairman of the Tribunal, to postpone the consideration of any application by or in respect of a patient, or of any such application of any prescribed class, until the expiration of such period, not being a period exceeding 12 months, as may be prescribed from the date on which the application by or in respect of the same patient was last considered and determined by the Tribunal;

(b)     for restricting the persons qualified to serve as members of the Tribunal, on the consideration of any application, or of an application of any prescribed class;

(c)     for enabling the Tribunal to dispose of an application without a formal hearing where such a hearing is not requested by the applicant or where it appears to the Tribunal that such a hearing would be detrimental to the health of the patient;

(d)     for enabling the Tribunal to exclude members of the public, or any specified class of members of the public, from any proceedings of the Tribunal, and to prohibit the publication of reports of any such proceedings or the names of any persons concerned in such proceedings;

(e)     for regulating the circumstances in which, and the persons by whom, applicants and patients in respect of whom applications are made to the Tribunal may, if not desiring to conduct their own case, be represented for the purposes of those applications;

(f)     for regulating the methods by which information relevant to an application may be obtained by, or furnished to, the Tribunal and, in particular, for authorizing the members of the Tribunal, or any one or more of them, to visit and interview in private any patient by or in respect of whom an application has been made;

(g)     for making available to any applicant, and to any patient in respect of whom an application is made to the Tribunal, copies of any documents obtained by, or furnished to, the Tribunal in connection with the application, and a statement of any oral information so obtained or furnished, except where the Tribunal considers it undesirable so to do in the interests of the patient or for other special reasons;

(h)     for requiring the Tribunal, if so requested in accordance with the provisions of the Order, to furnish such statements of the reasons for any decision given by the Tribunal as may be prescribed, subject to any provision made by the Order for withholding such a statement from a patient or any other person in cases where the Tribunal considers that the furnishing of such a statement would be undesirable in the interests of the patient or for other special reasons;

(i)     for conferring on the Tribunal such ancillary powers as the Minister may think necessary for the purpose of the exercise of the functions of the Tribunal under this Law,

and an Order made under the provisions of this paragraph may apply to all applications or to applications of such class as may be prescribed and may make different provisions in relation to different cases or classes of cases.



SCHEDULE 2

(Article 43(7))

OATH OF CURATORS

You swear and promise before God that well and faithfully you will discharge the duties of curator of the property and affairs of      ; that you will conserve and, so far as in you lies, increase his or her property as if it were your own; and that you will render full and true accounts to whomsoever such accounts are rightfully due as required by law.



Endnotes

Table of Legislation History



Legislation



Year and No



Commencement



Mental Health (Jersey) Law 1969



L.18/1969



1 January 1972 (R&O.5596)



Immigration (Jersey) Order 1972



OinC.33/1972



22 December 1972



Mental Health (Jersey) Regulations 1973



R&O.5838



13 June 1973



Nursing and Residential Homes (Jersey) Law 1994



L.12/1994



1 April 1995



Marriage and Civil Status (Jersey) Law 2001



L.31/2001



1 May 2002



Children (Jersey) Law 2002



L.50/2002



1 August 2005 (R&O.74/2005)



Mental Health (Amendment) (Jersey) Law 2004



L.8/2004



1 November 2004 (R&O.116/2004)



States of Jersey (Amendments and Construction Provisions No. 5) (Jersey) Regulations 2005



R&O.45/2005



9 December 2005



States of Jersey (Amendments and Construction Provisions No. 12) (Jersey) Regulations 2005



R&O.133/2005



9 December 2005



Mental Health (Amendment No. 2) (Jersey) Law 2009



L.15/2009



10 April 2009



Mental Health (Amendment No. 3) (Jersey) Law 2010



L.20/2010



26 November 2010



Civil Partnership (Jersey) Law 2012



L.4/2012



2 April 2012



Table of Renumbered Provisions



Original



Current



PART I



PART 1



PART II (Arts.5-11)



revoked by L.12/1994



PART III



PART 2



12



5



13



6



14



7



15



8



16



9



17



10



18



11



19



12



20



13



21



14



22



15



23



16



24



17



25



18



26



19



27



20



28



21



29



22



30



23



31



24



32



25



33



26



34



27



35



28



36    



29    



(1)(j)



     (1)(i)



37



30



38



31



39



32



40



33



41



34



PART IV



PART 3



42



35



PART V



PART 4



43



36



44



37



45



38



46



39



47



40



48



41



49



42



50



43



51



44



52



45



53



46



54



47



55



48



56



49



57



50



58



51



59



52



60



spent, omitted from this revised edition



61



spent, omitted from this revised edition



62



53



FIRST SCHEDULE



SCHEDULE 1



PART I



PART 1



PART II



PART 2



paragraph 10(j)



paragraph 10(i)



SECOND SCHEDULE



SCHEDULE 2



THIRD SCHEDULE



spent, omitted from this revised edition



Table of Endnote References



[1]



This Law has been amended by the States of Jersey (Amendments and Construction Provisions No. 5) (Jersey) Regulations 2005 and the States of Jersey (Amendments and Construction Provisions No. 12) (Jersey) Regulations 2005. The amendments replace all references to a Committee of the States of Jersey with a reference to a Minister of the States of Jersey, and remove and add defined terms appropriately, consequentially upon the move from a committee system of government to a ministerial system of government



[2]



chapter 08.680



[3]



chapter 21.700



[4] chapter 20.725Article 1(1)



definition “mental nursing home” substituted by L.12/1994



[5]



chapter 12.200



[6]



chapter 20.600



[7]



chapter 15.560



[8] Article 1(1)



amended by L.50/2002, L.8/2004, L20/2010



[9] Article 2(1)



amended by L.8/2004



[10] Article 2(3)



substituted by L.15/2009



[11] Article 4



substituted by L.8/2004



[12] Article 8(1)



amended by L.8/2004



[13] Article 8(2)



substituted by L.8/2004



[14] Article 9(4)



amended by L.4/2012



[15] Article 10



substituted by L.8/2004



[16] Article 10A



inserted by L.8/2004



[17] Article 11



amended by L.8/2004



[18] Article 12(1)



substituted by L.8/2004



[19] Article 12(2)



amended by L.8/2004, L.20/2010



[20] Article 12(3)



amended by L.8/2004, L.20/2010



[21] Article 12(5)



substituted by L.20/2010



[22] Article 12(6)



substituted by L.20/2010



[23] Article 12(7)



inserted by L.20/2010



[24] Article 12(8)



inserted by L.20/2010



[25] Article 13(1)



amended by L.8/2004



[26] Article 14(6)



substituted by L.8/2004



[27] Article 16(1A)



inserted by L.20/2010



[28] Article 16(1B)



inserted by L.20/2010



[29] Article 16(5)



substituted by L.20/2010; previous Article amended by L.8/2004



[30] Article 18(1)



substituted by L.8/2004



[31] Article 18(2)



substituted by L.8/2004



[32]



chapter 16.300



[33] Article 18(2A)



inserted by L.8/2004



[34] Article 18(5A)



inserted by L.8/2004



[35] Article 18(5B)



inserted by L.8/2004



[36] Article 18(5C)



inserted by L.8/2004



[37] Article 22(7)



substituted by L.20/2010



[38] Article 27



substituted by L.20/2010



[39] Article 29(1)



amended by L.4/2012



[40] Article 29(4)



amended by L.4/2012



[41] Article 29(5)



amended by L.4/2012



[42] Article 30



substituted by R&O.45/2005, amended by L.4/2012



[43] Article 30



substituted by L.50/2002



[44]



chapter 12.200



[45] Article 31



substituted by L.50/2002



[46]



chapter 12.200



[47] Part 3



substituted by L.8/2004



[48] Article 35



substituted and new Articles 35A-35C inserted by R&O.45/2005



[49]



chapter 07.05 ; the Article 7 referred to here was repealed by L.16/1969



[50] Article 43(7A)



inserted by L.20/2010



[51] Article 43(10)



amended by L.8/2004



[52] Article 43(17)



amended by L.4/2012



[53]



chapter 26.900



[54]



chapter 07.770



[55]



chapter 15.440



[56] chapter 12.600Article 52(2)



amended by L.31/2001



[57]



chapter 15.720



[58] Schedule 1



amended by R&O.5838, L.8/2004, L.20/2010