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| given up to and including |
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| New Amendments handed in are marked thus  |
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| Amendments which will comply with the required notice period at their next appearance
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| Mental Capacity (Amendment) Bill [Lords]
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| | This document includes all amendments tabled to date and includes any |
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| | withdrawn amendments at the end. The amendments have been arranged in |
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| | accordance with the Order of the Committee [15 January 2019]. |
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| Schedule 1, page 18, line 31, leave out paragraph 30(b) |
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| | Member’s explanatory statement
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| | This amendment makes provision for the responsible body to take on all functions relating to |
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| | renewal of deprivation of liberty in cases relating to care homes. |
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| Schedule 1, page 19, line 5, leave out paragraphs 32 and 33 |
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| | Member’s explanatory statement
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| | This amendment is consequential on Amendment 27 |
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| Schedule 1, page 19, line 34, at end insert— |
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| | “(2) | In varying an authorisation, the responsible body may also consider— |
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| | (a) | whether the cared-for person’s capacity is likely to fluctuate, and |
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| | (b) | whether any restrictions imposed are necessary to prevent harm to the |
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| | cared-for person and proportionate to the likelihood of that harm, and |
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| | are likely to continue to be necessary for the duration of the |
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| | Member’s explanatory statement
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| | This amendment enhances safeguards around the variation of conditions by the responsible body. |
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| | It indicates that the responsible body should consider whether the person’s capacity may fluctuate, |
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| | and whether the restrictions which are proposed should be in place for the duration of the |
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| Schedule 1, page 19, line 36, leave out from “body” to end of sub-paragraph (1) |
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| | Member’s explanatory statement
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| | This amendment is consequential on Amendment 27 |
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| Schedule 1, page 20, line 34, leave out “if it appears to the Approved Mental |
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| Capacity Professional to be appropriate and practicable to do so” |
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| | Member’s explanatory statement
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| | This amendment varies the role of the AMCP so that they must meet with the cared-for person in |
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| | making their determination. |
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| Schedule 1, page 20, line 40, at end insert— |
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| | “(d) | determine whether an application to the Court of Protection is |
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| | (e) | notify the responsible body, cared-for person, the appropriate person |
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| | and any IMCA of that decision.” |
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| | Member’s explanatory statement
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| | This amendment requires an AMCP to determine whether an application to the Court of Protection |
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| | is required, and notify the responsible body, cared-for person and others of this decision. |
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| Schedule 1, page 21, line 42, leave out sub-paragraphs (1) and (2), and insert— |
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| | “39(1) | The responsible body must take all reasonable steps to appoint an IMCA to |
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| | represent and support the cared-for person if— |
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| | (a) | sub-paragraph (2) provides that an IMCA should be appointed, and |
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| | (b) | sub-paragraph (6) does not apply. |
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| | (2) | An IMCA should be appointed if— |
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| | (a) | the cared-for person makes a request to the supervisory body to |
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| | (b) | there is no appropriate person to represent and support the cared-for |
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| | (c) | the cared-for person is 16 or 17 years old; |
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| | (d) | there is an appropriate person to support and represent the cared-for |
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| | person in relation to this Schedule and they make a request to the |
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| | supervisory body to instruct an IMCA; or |
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| | (e) | there is reason to believe that the appropriate person would be |
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| | unwilling or unable to assist the person in understanding or exercising |
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| | the relevant rights under this Schedule without the support of an |
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| | (3) | A person is not an appropriate person to represent and support the cared-for |
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| | person unless the responsible body is satisfied that the person— |
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| | (a) | is a suitable person to represent and support the cared-for person; |
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| | (b) | consents to representing and supporting the cared-for person; |
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| | (c) | will maintain contact with the cared-for person; |
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| | (d) | will represent and support the cared-for person in matters relating to |
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| | or connected with this Schedule; and |
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| | (e) | is not engaged in providing care or treatment for the cared for person |
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| | in a professional capacity. |
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| | (4) | A person is not an appropriate person if there is reason to believe that the cared- |
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| | for person does not wish, or would not wish, to be supported and represented |
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| | by the proposed appropriate person. |
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| | (5) | The ‘relevant rights’ under this Schedule include— |
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| | (a) | rights to request a review by an Approved Mental Capacity |
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| | (b) | rights to request a review under paragraph 35; |
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| | (c) | rights to information about the authorisation, assessments and its |
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| | (d) | rights to apply to the Court of Protection under s21ZA. |
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| | (6) | An IMCA should not be appointed if— |
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| | (a) | there is reason to believe that the cared-for person does not wish to be |
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| | supported by an IMCA; and |
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| | (b) | there is reason to believe that the cared-for person does not wish to |
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| | exercise rights to apply to the Court of Protection under s21ZA. |
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| | (7) | The responsible body must keep under review whether an appropriate person |
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| | is undertaking their functions. If the responsible body finds that the |
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| | appropriate person no longer fulfils the required functions, the responsible |
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| | body must appoint another appropriate person or IMCA.” |
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| | Member’s explanatory statement
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| | This amendment would amend the requirements for an IMCA to be appointed, so that advocacy is |
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| | the default position. It also makes provision for appropriate persons to be appointed subject to |
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| | certain conditions relating to how they discharge their role. |
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| Schedule 1, page 24, line 3, at end insert “in a hospital” |
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| | Member’s explanatory statement
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| | This is to provide that only arrangements to enable medical treatment for mental disorder in a |
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| | hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded |
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| | from being authorised under the new Schedule AA1. |
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| Schedule 1, page 24, line 10, at end insert “in a hospital” |
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| | Member’s explanatory statement
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| | This is to provide that only arrangements to enable medical treatment for mental disorder in a |
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| | hospital (as opposed to medical treatment for mental disorder in any other setting) are excluded |
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| | from being authorised under the new Schedule AA1. |
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| Schedule 1, page 27, line 16, at end insert— |
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| | “(g) | anything which has the same effect as something within any of |
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| | paragraphs (a) to (f), under another England and Wales enactment.” |
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| | Member’s explanatory statement
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| | If arrangements conflict with requirements, conditions or directions imposed or given under |
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| | certain provisions of the Mental Heath Act 1983 those arrangements cannot be authorised under |
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| | the new Schedule AA1 of the Mental Capacity Act 2005. This amendment provides that |
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| | arrangements which conflict with requirements, conditions or directions arising from an England |
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| | and Wales enactment having the same effect as the provisions of the Mental Health Act listed in |
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| | paragraph 54 also cannot be authorised under the new Schedule AA1. |
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| Clause 2, page 2, line 12, at end insert “for a maximum period of 14 days” |
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| | Member’s explanatory statement
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| | This amendment will limit the duration of an emergency authorisation to 14 days. |
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| Clause 2, page 3, line 4, at end insert— |
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| | “(10) | Where this section is relied on to deprive a cared-for person of his liberty, the |
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| | person relying on this section must— |
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| | (a) | inform the cared-for person and any person with an interest in the cared- |
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| | for person’s welfare of that fact; |
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| | (b) | keep a written record of the reasons for relying on this section; |
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| | (c) | supply a copy of the written record of reasons to the cared-for person and |
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| | any person with an interest in the cared-for person’s welfare within 24 |
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| | hours of the deprivation of liberty commencing; and |
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| | (d) | if any of the following apply, make an application to the Court of |
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| | (i) | the cared-for person objects to being deprived of his liberty; |
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| | (ii) | a person with an interest in the welfare of the cared-for person |
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| | objects to the cared-for person being deprived of his liberty; or |
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| | (iii) | the donee of a lasting power of attorney or a court-appointed |
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| | deputy objects to the cared-for person being deprived of his |
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| | Member’s explanatory statement
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| | These amendment will ensure information is shared with the cared for person and any person of |
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| | interest in the cared for person’s welfare and sets out when an application to the Court of |
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| | Protection must be made immediately. |
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| Clause 3, page 3, line 14, leave out “whether Schedule AA1 applies to the |
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| arrangements” and insert “any issue in relation to the application of Schedule AA1” |
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| | Member’s explanatory statement
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| | This amendment seeks to clarify that all relevant issues pertaining to Schedule AA1 can be |
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| | addressed by the Court of Protection, for example whether an IMCA should be appointed or an |
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| Schedule 2, page 28, line 22, at end insert— |
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| | “3A(1) | Section 36 (functions of independent mental capacity advocates) is amended |
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| | (2) | In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that |
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| | (3) | In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes |
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| | and feelings of the person the advocate has been instructed to represent (“P”)”. |
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| | (4) | After subsection (2)(d) insert— |
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| | “(da) | in the case of an advocate instructed to support an appropriate |
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| | person where paragraph 40 of Schedule AA1 applies, |
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| | supporting that person to ascertain— |
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| | (i) | what the wishes and feelings of the cared-for person |
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| | who that appropriate person represents and supports |
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| | would be likely to be and the beliefs and values that |
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| | would be likely to influence the cared-for person; |
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| | (ii) | what alternative courses of action are available in |
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| | relation to the cared-for person who that appropriate |
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| | person represents and supports;”. |
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| | 3B (1) | Section 38 (provision of accommodation by NHS body) is amended as |
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| | (2) | For subsection (2A) substitute— |
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| | “(2A) | And this section does not apply if— |
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| | (a) | an independent mental capacity advocate is appointed under |
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| | paragraph 39 of Schedule AA1 to represent and support P, and |
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| | (b) | the arrangements which are authorised or proposed under |
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| | Schedule AA1 in respect of P include arrangements for P to |
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| | be accommodated in the hospital or care home referred to in |
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| | (3) | In subsection (3), in the opening words, after “arrangements” insert |
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| | “mentioned in subsection (1)”. |
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| | (4) | Omit subsection (10). |
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| | 3C (1) | Section 39 (provision of accommodation by local authority) is amended as |
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| | (2) | For subsection (3A) substitute— |
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| | “(3A) | And this section does not apply if— |
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| | (a) | an independent mental capacity advocate is appointed under |
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| | paragraph 39 of Schedule AA1 to represent and support P, and |
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| | (b) | the arrangements which are authorised or proposed under |
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| | Schedule AA1 in respect of P include arrangements for P to |
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| | be accommodated in the residential accommodation referred |
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| | (3) | In subsection (4), in the opening words, after “arrangements” insert |
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| | “mentioned in subsection (1)”. |
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| | (4) | Omit subsection (7).” |
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| | Member’s explanatory statement
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| | This amends the regulation making power in section 36 of the Mental Capacity Act 2005 to ensure |
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| | that equivalent provision can be made for advocates who support a cared-for person’s |
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| | “appropriate person” as for other advocates. It also makes other changes to that Act |
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| | consequential on amendments made by Schedules 1 and 2 to the Bill. |
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| Schedule 2, page 28, line 23, at end insert— |
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| | “4A | In section 40 (exceptions)— |
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| | (a) | in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)” |
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| | substitute “or 39(4) or (5)”; |
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| | (b) | omit subsection (2).” |
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| | Member’s explanatory statement
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| | This amendment is consequential on the amendments made to the Mental Capacity Act 2005 by |
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| | Schedules 1 and 2 to the Bill. |
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| Clause 5, page 4, line 16, at end insert— |
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| | “(3A) | Before the Secretary of State makes any regulations under subsection (3)(b) |
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| | above, the Secretary of State must publish his or her consideration of the |
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| | conclusions of the Independent Review of the Mental Health Act relevant to the |
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| | deprivation of liberty in accordance with the provisions of the Mental Capacity |
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| | Act 2005, and in particular Schedule AA1 of that Act.” |
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| | Member’s explanatory statement
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| | This amendment ensures that the Government cannot enact the provisions of this Bill until such a |
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| | date as it has responded to the findings of the Independent Review of the Mental Health Act, |
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| | specifically the interface between the Mental Health Act and the Mental Capacity Act. |
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| Clause 5, page 4, line 16, at end insert— |
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| | “(3A) | Before the Secretary of State makes any regulations under subsection (3)(b) |
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| | above, the Secretary of State must— |
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| | (a) | publish a full implementation strategy, outlining how local authorities |
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| | and other responsible bodies will be resourced to process applications |
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| | (b) | publish an updated Impact Assessment on the impact of the provisions of |
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| | Member’s explanatory statement
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| | This amendment ensures that the Government cannot enact the provisions of this Bill until such a |
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| | date as it has published an updated impact assessment, and set out an implementation strategy for |
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| Clause 5, page 4, line 16, at end insert— |
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| | “(3A) | The Secretary of State may not make any regulations under subsection (3)(b) |
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| | (a) | the Secretary of State has— |
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| | (i) | consulted on the Code of Practice, |
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| | (ii) | published a Code of Practice, |
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