1

House of Commons

Notices of Amendments

given up to and including

Thursday 17 January 2019

New Amendments handed in are marked thus

Amendments 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withdrawn amendments at the end.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

accordance with the Order of the Committee [15 January 2019].

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

27

Schedule  1,  page  18,  line  31,  leave out paragraph 30(b)

Member’s explanatory statement

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

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

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

28

Schedule  1,  page  19,  line  5,  leave out paragraphs 32 and 33

Member’s explanatory statement

This amendment is consequential on Amendment 27

Notices of Amendments: 17 January 2019                  

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

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

45

Schedule  1,  page  19,  line  34,  at end insert—

    “(2)  

In varying an authorisation, the responsible body may also consider—

(a)    

whether the cared-for person’s capacity is likely to fluctuate, and

(b)    

whether any restrictions imposed are necessary to prevent harm to the

cared-for person and proportionate to the likelihood of that harm, and

are likely to continue to be necessary for the duration of the

authorisation.”

Member’s explanatory statement

This amendment enhances safeguards around the variation of conditions by the responsible body.

It indicates that the responsible body should consider whether the person’s capacity may fluctuate,

and whether the restrictions which are proposed should be in place for the duration of the

authorisation.

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

29

Schedule  1,  page  19,  line  36,  leave out from “body” to end of sub-paragraph (1)

Member’s explanatory statement

This amendment is consequential on Amendment 27

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

43

Schedule  1,  page  20,  line  34,  leave out “if it appears to the Approved Mental

Capacity Professional to be appropriate and practicable to do so”

Member’s explanatory statement

This amendment varies the role of the AMCP so that they must meet with the cared-for person in

making their determination.

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

41

Schedule  1,  page  20,  line  40,  at end insert—

“(d)    

determine whether an application to the Court of Protection is

required; and

(e)    

notify the responsible body, cared-for person, the appropriate person

and any IMCA of that decision.”

Member’s explanatory statement

This amendment requires an AMCP to determine whether an application to the Court of Protection

is required, and notify the responsible body, cared-for person and others of this decision.

Notices of Amendments: 17 January 2019                  

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

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

46

Schedule  1,  page  21,  line  42,  leave out sub-paragraphs (1) and (2), and insert—

“39(1)  

The responsible body must take all reasonable steps to appoint an IMCA to

represent and support the cared-for person if—

(a)    

sub-paragraph (2) provides that an IMCA should be appointed, and

(b)    

sub-paragraph (6) does not apply.

      (2)  

An IMCA should be appointed if—

(a)    

the cared-for person makes a request to the supervisory body to

instruct an IMCA;

(b)    

there is no appropriate person to represent and support the cared-for

person;

(c)    

the cared-for person is 16 or 17 years old;

(d)    

there is an appropriate person to support and represent the cared-for

person in relation to this Schedule and they make a request to the

supervisory body to instruct an IMCA; or

(e)    

there is reason to believe that the appropriate person would be

unwilling or unable to assist the person in understanding or exercising

the relevant rights under this Schedule without the support of an

IMCA.

      (3)  

A person is not an appropriate person to represent and support the cared-for

person unless the responsible body is satisfied that the person—

(a)    

is a suitable person to represent and support the cared-for person;

(b)    

consents to representing and supporting the cared-for person;

(c)    

will maintain contact with the cared-for person;

(d)    

will represent and support the cared-for person in matters relating to

or connected with this Schedule; and

(e)    

is not engaged in providing care or treatment for the cared for person

in a professional capacity.

      (4)  

A person is not an appropriate person if there is reason to believe that the cared-

for person does not wish, or would not wish, to be supported and represented

by the proposed appropriate person.

      (5)  

The ‘relevant rights’ under this Schedule include—

(a)    

rights to request a review by an Approved Mental Capacity

Professional;

(b)    

rights to request a review under paragraph 35;

(c)    

rights to information about the authorisation, assessments and its

effects;

(d)    

rights to apply to the Court of Protection under s21ZA.

      (6)  

An IMCA should not be appointed if—

(a)    

there is reason to believe that the cared-for person does not wish to be

supported by an IMCA; and

(b)    

there is reason to believe that the cared-for person does not wish to

exercise rights to apply to the Court of Protection under s21ZA.

      (7)  

The responsible body must keep under review whether an appropriate person

is undertaking their functions. If the responsible body finds that the

Notices of Amendments: 17 January 2019                  

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

appropriate person no longer fulfils the required functions, the responsible

body must appoint another appropriate person or IMCA.”

Member’s explanatory statement

This amendment would amend the requirements for an IMCA to be appointed, so that advocacy is

the default position. It also makes provision for appropriate persons to be appointed subject to

certain conditions relating to how they discharge their role.

Caroline Dinenage

11

Schedule  1,  page  24,  line  3,  at end insert “in a hospital”

Member’s explanatory statement

This is to provide that only arrangements to enable medical treatment for mental disorder in a

hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded

from being authorised under the new Schedule AA1.

Caroline Dinenage

12

Schedule  1,  page  24,  line  10,  at end insert “in a hospital”

Member’s explanatory statement

This is to provide that only arrangements to enable medical treatment for mental disorder in a

hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded

from being authorised under the new Schedule AA1.

Caroline Dinenage

13

Schedule  1,  page  27,  line  16,  at end insert—

“(g)    

anything which has the same effect as something within any of

paragraphs (a) to (f), under another England and Wales enactment.”

Member’s explanatory statement

If arrangements conflict with requirements, conditions or directions imposed or given under

certain provisions of the Mental Heath Act 1983 those arrangements cannot be authorised under

the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that

arrangements which conflict with requirements, conditions or directions arising from an England

and Wales enactment having the same effect as the provisions of the Mental Health Act listed in

paragraph 54 also cannot be authorised under the new Schedule AA1.

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

16

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: 17 January 2019                  

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

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

17

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

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

14

Schedule  2,  page  28,  line  22,  at end insert—

“3A(1)  

Section 36 (functions of independent mental capacity advocates) is amended

as follows.

      (2)  

In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that

that person”.

Notices of Amendments: 17 January 2019                  

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

      (3)  

In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes

and feelings of the person the advocate has been instructed to represent (“P”)”.

      (4)  

After subsection (2)(d) insert—

“(da)    

in the case of an advocate instructed to support an appropriate

person where paragraph 40 of Schedule AA1 applies,

supporting that person to ascertain—

(i)    

what the wishes and feelings of the cared-for person

who that appropriate person represents and supports

would be likely to be and the beliefs and values that

would be likely to influence the cared-for person;

(ii)    

what alternative courses of action are available in

relation to the cared-for person who that appropriate

person represents and supports;”.

3B  (1)  

Section 38 (provision of accommodation by NHS body) is amended as

follows.

      (2)  

For subsection (2A) substitute—

“(2A)    

And this section does not apply if—

(a)    

an independent mental capacity advocate is appointed under

paragraph 39 of Schedule AA1 to represent and support P, and

(b)    

the arrangements which are authorised or proposed under

Schedule AA1 in respect of P include arrangements for P to

be accommodated in the hospital or care home referred to in

this section.”

      (3)  

In subsection (3), in the opening words, after “arrangements” insert

“mentioned in subsection (1)”.

      (4)  

Omit subsection (10).

3C  (1)  

Section 39 (provision of accommodation by local authority) is amended as

follows.

      (2)  

For subsection (3A) substitute—

“(3A)    

And this section does not apply if—

(a)    

an independent mental capacity advocate is appointed under

paragraph 39 of Schedule AA1 to represent and support P, and

(b)    

the arrangements which are authorised or proposed under

Schedule AA1 in respect of P include arrangements for P to

be accommodated in the residential accommodation referred

to in this section.”

      (3)  

In subsection (4), in the opening words, after “arrangements” insert

“mentioned in subsection (1)”.

      (4)  

Omit subsection (7).”

Member’s explanatory statement

This amends the regulation making power in section 36 of the Mental Capacity Act 2005 to ensure

that equivalent provision can be made for advocates who support a cared-for person’s

“appropriate person” as for other advocates. It also makes other changes to that Act

consequential on amendments made by Schedules 1 and 2 to the Bill.

Caroline Dinenage

15

Schedule  2,  page  28,  line  23,  at end insert—

“4A      

In section 40 (exceptions)—

(a)    

in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)”

substitute “or 39(4) or (5)”;

Notices of Amendments: 17 January 2019                  

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

(b)    

omit subsection (2).”

Member’s explanatory statement

This amendment is consequential on the amendments made to the Mental Capacity Act 2005 by

Schedules 1 and 2 to the Bill.

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

52

Clause  5,  page  4,  line  16,  at end insert—

“(3A)    

Before the Secretary of State makes any regulations under subsection (3)(b)

above, the Secretary of State must publish his or her consideration of the

conclusions of the Independent Review of the Mental Health Act relevant to the

deprivation of liberty in accordance with the provisions of the Mental Capacity

Act 2005, and in particular Schedule AA1 of that Act.”

Member’s explanatory statement

This amendment ensures that the Government cannot enact the provisions of this Bill until such a

date as it has responded to the findings of the Independent Review of the Mental Health Act,

specifically the interface between the Mental Health Act and the Mental Capacity Act.

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

53

Clause  5,  page  4,  line  16,  at end insert—

“(3A)    

Before the Secretary of State makes any regulations under subsection (3)(b)

above, the Secretary of State must—

(a)    

publish a full implementation strategy, outlining how local authorities

and other responsible bodies will be resourced to process applications

under this Act; and

(b)    

publish an updated Impact Assessment on the impact of the provisions of

this Act.”

Member’s explanatory statement

This amendment ensures that the Government cannot enact the provisions of this Bill until such a

date as it has published an updated impact assessment, and set out an implementation strategy for

the new system.

Barbara Keeley

Paula Sherriff

Thangam Debbonaire

Alex Norris

54

Clause  5,  page  4,  line  16,  at end insert—

“(3A)    

The Secretary of State may not make any regulations under subsection (3)(b)

above, unless—

(a)    

the Secretary of State has—

(i)    

consulted on the Code of Practice,

(ii)    

published a Code of Practice,