Session 2017-19
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1

 

House of Commons

 
 

Notices of Amendments

 

given up to and including

 

Thursday 17 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withdrawn amendments at the end.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

 

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                  

2

 

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                  

3

 

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                  

4

 

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                  

5

 

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                  

6

 

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                  

7

 

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,


 
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Revised 17 January 2019