Session 2017-19
Internet Publications
Other Bills before Parliament


 
 

1

 

House of Commons

 
 

Notices of Amendments

 

given up to and including

 

Friday 11 January 2019

 

New Amendments handed in are marked thus Parliamentary Star

 

Parliamentary Star - whiteAmendments which will comply with the required notice period at their next appearance

 

Public Bill Committee


 

Mental Capacity (Amendment) Bill [Lords]


 

Note

 

This document includes all amendments tabled to date and includes any

 

withdrawn amendments at the end. The amendments have been arranged in the

 

order in which they relate to the Bill.

 


 

Caroline Dinenage

 

That, subject to the discretion of the Chair, any written evidence received by the

 

Committee shall be reported to the House for publication.

 


 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

16

 

Parliamentary Star - white    

Clause  2,  page  2,  line  12,  at end insert “for a maximum period of 14 days”

 

Member’s explanatory statement

 

This amendment will limit the duration of an emergency authorisation to 14 days.

 



 
 

Notices of Amendments: 11 January 2019                  

2

 

Mental Capacity (Amendment) Bill-[Lords], continued

 
 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

17

 

Parliamentary Star - white    

Clause  2,  page  3,  line  4,  at end insert—

 

“(10)    

Where this section is relied on to deprive a cared-for person of his liberty, the

 

person relying on this section must—

 

(a)    

inform the cared-for person and any person with an interest in the cared-

 

for person’s welfare of that fact;

 

(b)    

keep a written record of the reasons for relying on this section;

 

(c)    

supply a copy of the written record of reasons to the cared-for person and

 

any person with an interest in the cared-for person’s welfare within 24

 

hours of the deprivation of liberty commencing; and

 

(d)    

if any of the following apply, make an application to the Court of

 

Protection immediately—

 

(i)    

the cared-for person objects to being deprived of his liberty;

 

(ii)    

a person with an interest in the welfare of the cared-for person

 

objects to the cared-for person being deprived of his liberty; or

 

(iii)    

the donee of a lasting power of attorney or a court-appointed

 

deputy objects to the cared-for person being deprived of his

 

liberty.”

 

Member’s explanatory statement

 

These amendment will ensure information is shared with the cared for person and any person of

 

interest in the cared for person’s welfare and sets out when an application to the Court of

 

Protection must be made immediately.

 


 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

18

 

Parliamentary Star - white    

Clause  3,  page  3,  line  14,  leave out “whether Schedule AA1 applies to the

 

arrangements” and insert “any issue in relation to the application of Schedule AA1”

 

Member’s explanatory statement

 

This amendment seeks to clarify that all relevant issues pertaining to Schedule AA1 can be

 

addressed by the Court of Protection, for example whether an IMCA should be appointed or an

 

AMCP involved.

 


 

Caroline Dinenage

 

1

 

Clause  5,  page  4,  line  25,  leave out subsection (9)

 

Member’s explanatory statement

 

This amendment removes the privilege amendment inserted by the Lords.

 



 
 

Notices of Amendments: 11 January 2019                  

3

 

Mental Capacity (Amendment) Bill-[Lords], continued

 
 

Caroline Dinenage

 

NC1

 

To move the following Clause—

 

         

“Meaning of deprivation of liberty

 

(1)    

After section 4 of the Mental Capacity Act 2005 insert—

 

“4ZA  

Meaning of deprivation of liberty

 

(1)    

In this Act, references to deprivation of a person’s liberty have the same

 

meaning as in Article 5(1) of the Human Rights Convention and,

 

accordingly, a person is not deprived of liberty in any of the

 

circumstances described in subsections (2) to (4).

 

(2)    

A person is not deprived of liberty in a particular place if the person is

 

free to leave that place permanently.

 

(3)    

A person is not deprived of liberty in a particular place if—

 

(a)    

the person is not subject to continuous supervision, and

 

(b)    

the person is free to leave the place temporarily (even if subject

 

to supervision while outside that place).

 

(4)    

A person is not deprived of liberty if—

 

(a)    

the arrangements alleged to give rise to the deprivation of liberty

 

are put in place in order to give medical treatment for a physical

 

illness or injury, and

 

(b)    

the same (or materially the same) arrangements would be put in

 

place for any person receiving that treatment.

 

(5)    

A person is free to leave a particular place for the purposes of subsections

 

(2) and (3) even if the person is unable to leave that place provided that

 

if the person expressed a wish to leave the person would be enabled to do

 

so.”

 

(2)    

In section 64(5) of that Act (interpretation) for the words from “same” to the end

 

substitute “meaning given by section 4ZA.””

 

Member’s explanatory statement

 

This New Clause provides the meaning of “deprivation of liberty” for the purposes of the Mental

 

Capacity Act 2005.

 

 


 

Caroline Dinenage

 

2

 

Schedule  1,  page  5,  line  19,  leave out “if a person objects to arrangements” and

 

insert “in certain cases”

 

Member’s explanatory statement

 

This amendment is consequential on Amendment 9.


 
 

Notices of Amendments: 11 January 2019                  

4

 

Mental Capacity (Amendment) Bill-[Lords], continued

 
 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

19

 

Parliamentary Star - white    

Schedule  1,  page  8,  line  17,  at end insert—

 

“(aa)    

if the arrangements are for the cared-for person to be accommodated

 

in an independent hospital for the purpose of assessment or treatment

 

for mental disorder, and that care is commissioned by a clinical

 

commissioning group or Local Health Board, it is the clinical

 

commissioning group or Local Health Board, that is the responsible

 

body;”

 

Member’s explanatory statement

 

This amendment would mean that, where a person is accommodated in an independent hospital

 

for the assessment or treatment of a mental disorder, and their care is commissioned by a CCG or

 

Local Health Board, then the responsible body will be the CCG or Local Health Board.

 

Caroline Dinenage

 

3

 

Schedule  1,  page  8,  line  19,  leave out from “mainly” to “that” in line 21 and insert

 

“through—

 

(i)    

the provision of NHS continuing healthcare under

 

arrangements made by a clinical commissioning group, or

 

(ii)    

in Wales, the provision of an equivalent to NHS continuing

 

healthcare under arrangements made by a Local Health

 

Board,”

 

Member’s explanatory statement

 

“NHS continuing healthcare” is defined, for England, by paragraph 8 of new Schedule AA1. This

 

amendment provides that in the case of arrangements carried out through the equivalent of NHS

 

continuing healthcare, in Wales, the responsible body is the Local Heath Board making the

 

arrangements.

 

Steve McCabe

 

47

 

Parliamentary Star - white    

Schedule  1,  page  11,  line  17,  at end insert—

 

“(d)    

the arrangements are in the cared for person’s best interest,

 

(e)    

less restrictive options have been considered,

 

(f)    

appropriate weight has been given to the cared for person’s feelings

 

and wishes as best as these can be determined.”

 

Member’s explanatory statement

 

This amendment is designed to pursue the issue of a person being deprived of their liberty as a last

 

resort and only if it is in their best interest and a reasonable effort made to determine their wishes

 

and feelings.

 

Caroline Dinenage

 

4

 

Schedule  1,  page  11,  line  19,  leave out from beginning to end of line 7 on page 12

 

and insert—

 

“13(1)  

As soon as practicable after authorising arrangements, the responsible body

 

must ensure that a copy of the authorisation record is given to—

 

(a)    

the cared-for person,

 

(b)    

any independent mental capacity advocate appointed under paragraph

 

39 to represent and support the cared-for person,


 
 

Notices of Amendments: 11 January 2019                  

5

 

Mental Capacity (Amendment) Bill-[Lords], continued

 
 

(c)    

any person within paragraph 39(5) in respect of the cared-for person

 

(the “appropriate person”), and

 

(d)    

any independent mental capacity advocate appointed under paragraph

 

40 to support the appropriate person.

 

      (2)  

As soon as practicable after authorising arrangements, the responsible body

 

must take such steps as are practicable to ensure that the cared-for person and

 

any other person listed in sub-paragraph (1) understands—

 

(a)    

the effect of the authorisation,

 

(b)    

the right to make an application to the court to exercise its jurisdiction

 

under section 21ZA,

 

(c)    

the programme of regular reviews specified by the responsible body in

 

accordance with paragraph 35(2),

 

(d)    

the right to request a review under paragraph 35(3)(b),

 

(e)    

the circumstances in which a referral will be made to an Approved

 

Mental Capacity Professional under paragraph 35(4),

 

(f)    

the circumstances in which an independent mental capacity advocate

 

should be appointed under paragraph 39, and

 

(g)    

the effect of there being an appropriate person in relation to the cared-

 

for person.”

 

Member’s explanatory statement

 

This amendment substitutes a new paragraph 13 of the new Schedule AA1 to require that, as soon

 

as practicable after arrangements are authorised, the responsible body must provide to the cared-

 

for person and any other person listed in paragraph 13(1) a copy of the authorisation record and

 

take steps to ensure that those people understand the matters described in paragraph 13(2).

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

20

 

Parliamentary Star - white    

Schedule  1,  page  12,  line  12,  leave out paragraph 14(b)

 

Member’s explanatory statement

 

This amendment makes provision for the responsible body to take on all functions relating to

 

authorisation of deprivation of liberty in cases relating to care homes.

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

30

 

Parliamentary Star - white    

Schedule  1,  page  12,  line  29,  at end insert new sub-paragraph—

 

“(da)    

in the case of a cared-for person aged 16 or 17 (unless that person is

 

subject to a care order under section 31 of the Children Act 1989 or an

 

interim care order under section 38 of that Act) the responsible body

 

is satisfied that no person with parental responsibility objects to the

 

arrangements,”

 

Member’s explanatory statement

 

This amendment makes provision enabling parents to object to care arrangements that give rise to

 

their child’s deprivation of liberty.


 
 

Notices of Amendments: 11 January 2019                  

6

 

Mental Capacity (Amendment) Bill-[Lords], continued

 
 

Steve McCabe

 

51

 

Parliamentary Star - white    

Schedule  1,  page  12,  line  40,  at end insert—

 

“(h)    

the cared for person has access to an Approved Mental Capacity

 

Professional”

 

Member’s explanatory statement

 

This amendment is designed to probe that the responsible body could not authorise arrangements

 

for the deprivation of liberty under Clause 15 if the cared for person does not have access to

 

reasonable support and consideration by an Approved Mental Capacity Professional.

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

21

 

Parliamentary Star - white    

Schedule  1,  page  12,  line  41,  leave out paragraph 16 and 17

 

Member’s explanatory statement

 

This amendment is consequential on Amendment 20.

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

32

 

Parliamentary Star - white    

Schedule  1,  page  13,  line  46,  at end insert—

 

“(aa)    

a determination made on an assessment in respect of the cared-for

 

person as to whether the person’s capacity is likely to fluctuate, and”

 

Member’s explanatory statement

 

This amendment requires that an assessment of whether a person’s capacity is likely to fluctuate

 

is included within the initial capacity and medical assessments, and therefore seeks to ensure that

 

fluctuating capacity is reflected in the care plan of the cared-for person.

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

31

 

Parliamentary Star - white    

Schedule  1,  page  13,  leave out lines 47 and 48 and insert—

 

“(b)    

a determination made on an assessment by a registered medical

 

practitioner in respect of the cared-for person that the person has a

 

mental disorder.”

 

Member’s explanatory statement

 

This amendment would require the medical assessment to be carried out by a registered medical

 

practitioner.

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

33

 

Parliamentary Star - white    

Schedule  1,  page  14,  line  2,  after “appropriate” insert “skills,”

 

Member’s explanatory statement

 

This amendment would require the person carrying out a medical or capacity assessment to have

 

the appropriate skills to do so, as well as the appropriate experience and knowledge.


 
 

Notices of Amendments: 11 January 2019                  

7

 

Mental Capacity (Amendment) Bill-[Lords], continued

 
 

Caroline Dinenage

 

5

 

Schedule  1,  page  14,  line  6,  leave out “prescribed connection” and insert

 

“connection, of a kind prescribed by regulations,”

 

Member’s explanatory statement

 

This amendment is to make it clear that a regulation making power is being conferred by

 

paragraph 18(3) of the new Schedule AA1.

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

22

 

Parliamentary Star - white    

Schedule  1,  page  14,  line  27,  leave out from “means” to end of subparagraph (8)(b)

 

and insert “the responsible body”

 

Member’s explanatory statement

 

This amendment is consequential on Amendment 20.

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

23

 

Parliamentary Star - white    

Schedule  1,  page  14,  line  41,  leave out sub-paragraphs (3)(a) and (3)(b) and insert

 

“to the responsible body”

 

Member’s explanatory statement

 

This amendment is consequential on Amendment 20.

 

Caroline Dinenage

 

6

 

Schedule  1,  page  15,  line  4,  leave out “prescribed connection” and insert

 

“connection, of a kind prescribed by regulations,”

 

Member’s explanatory statement

 

This amendment is to make it clear that a regulation making power is being conferred by

 

paragraph 19(4) of the new Schedule AA1.

 

Barbara Keeley

 

Paula Sherriff

 

Thangam Debbonaire

 

Alex Norris

 

24

 

Parliamentary Star - white    

Schedule  1,  page  15,  line  14,  leave out from “out” to end of sub-paragraph (1)(b)

 

and insert “by the responsible body”

 

Member’s explanatory statement

 

This amendment is consequential on Amendment 20.


 
Back to StartNext
 

Revised 11 January 2019