Mental Capacity (Amendment) Bill (HC Bill 323)

A

BILL

[AS AMENDED IN PUBLIC BILL COMMITTEE]

TO

Amend the Mental Capacity Act 2005 in relation to procedures in accordance
with which a person may be deprived of liberty where the person lacks
capacity to consent; and for connected purposes.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—

Meaning of deprivation of liberty

1 Meaning of deprivation of liberty

(1) After section 4 of the Mental Capacity Act 2005 insert—

4ZA Meaning of deprivation of liberty

(1) 5In 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
10free 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) 15A 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

Mental Capacity (Amendment) BillPage 2

(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
5provided 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.”

Safeguards

2 10Deprivation of liberty: authorisation of arrangements enabling care and
treatment

(1) The Mental Capacity Act 2005 is amended as follows.

(2) In section 4A (restriction on deprivation of liberty) for subsection (5)
substitute—

(5) 15D may deprive P of liberty if, by doing so, D is carrying out
arrangements authorised under Schedule AA1 (arrangements enabling
the care and treatment of persons who lack capacity).”

(3) After section 4B insert—

4C Carrying out of authorised arrangements giving rise to deprivation of
20liberty

(1) This section applies to an act that a person (“D”) does in carrying out
arrangements authorised under Schedule AA1.

(2) D does not incur any liability in relation to the act that would not have
been incurred if the cared-for person—

(a) 25had had capacity to consent in relation to D doing the act, and

(b) had consented to D doing the act.

(3) Nothing in this section excludes a person’s civil liability for loss or
damage, or a person’s criminal liability, resulting from that person’s
negligence in doing the act.

(4) 30Paragraph 28 of Schedule AA1 applies if an authorisation ceases to
have effect in certain cases.

(5) “Cared-for person” has the meaning given by paragraph 2(1) of that
Schedule.”

(4) Before Schedule 1 insert the Schedule AA1 set out in Schedule 1 to this Act.

Mental Capacity (Amendment) BillPage 3

3 Deprivation of liberty: authorisation of steps necessary for life-sustaining
treatment or vital act

For section 4B of the Mental Capacity Act 2005 substitute—

4B Deprivation of liberty necessary for life-sustaining treatment or vital
5act

(1) If Conditions 1 to 4 are met, D is authorised to take steps which deprive
P of liberty.

(2) Condition 1 is that the steps—

(a) are wholly or partly for the purpose of giving P life-sustaining
10treatment or doing any vital act, or

(b) consist wholly or partly of giving P life-sustaining treatment or
doing any vital act.

(3) A vital act is any act which the person doing it reasonably believes to
be necessary to prevent a serious deterioration in P’s condition.

(4) 15Condition 2 is that the steps are necessary in order to give the life-
sustaining treatment or do the vital act.

(5) Condition 3 is that D reasonably believes that P lacks capacity to
consent to D taking the steps.

(6) Condition 4 is that—

(a) 20subsection (7) applies, or

(b) there is an emergency.

(7) This subsection applies if—

(a) a decision relevant to whether D is authorised to deprive P of
liberty is being sought from the court, or

(b) 25a responsible body is carrying out functions under Schedule
AA1 with a view to determining whether to authorise
arrangements that give rise to a deprivation of P’s liberty.

(8) In subsection (7) it does not matter—

(a) whether the decision mentioned in paragraph (a) relates to the
30steps mentioned in subsection (1);

(b) whether the arrangements mentioned in paragraph (b) include
those steps.

(9) There is an emergency if D reasonably believes that—

(a) there is an urgent need to take the steps mentioned in
35subsection (1) in order to give the life-sustaining treatment or
do the vital act, and

(b) it is not reasonably practicable before taking those steps—

(i) to make an application for P to be detained under Part 2
of the Mental Health Act,

(ii) 40to make an application within subsection (7)(a), or

(iii) to secure that action within subsection (7)(b) is taken.”

Mental Capacity (Amendment) BillPage 4

4 Powers of the court to determine questions

After section 21 of the Mental Capacity Act 2005 insert—

“Powers of the court in relation to Schedule AA1

21ZA Powers of court in relation to Schedule AA1

(1) 5This section applies where an authorisation under Schedule AA1—

(a) has effect, or

(b) is to have effect from a date specified under paragraph 25 of that
Schedule.

(2) The court may determine any question relating to—

(a) 10whether Schedule AA1 applies to the arrangements, or whether
the authorisation conditions are met;

(b) what period the authorisation has effect for;

(c) what the authorisation relates to.

(3) If the court determines a question under subsection (2), the court may
15make an order—

(a) varying or terminating the authorisation;

(b) directing the responsible body to vary the authorisation.

(4) Where the court makes an order under subsection (3) the court may
make an order about a person’s liability for anything done in carrying
20out the arrangements before the variation or termination.

(5) An order under subsection (4) may, in particular, exclude a person from
liability.

(6) “Authorisation conditions” has the meaning given by paragraph 12 of
Schedule AA1.”

25General

5 Consequential provision etc

(1) The Secretary of State may by regulations make provision that is consequential
on any provision made by this Act.

(2) Regulations under this section—

(a) 30may make different provision for different purposes or areas;

(b) may amend, repeal or revoke any provision made by or under an Act
passed before this Act or in the same Session.

(3) The power to make regulations under this section is exercisable by statutory
instrument.

(4) 35Regulations under this section that repeal or amend a provision of an Act may
not be made unless a draft of the statutory instrument containing them has
been laid before Parliament and approved by a resolution of each House of
Parliament.

(5) Any other regulations under this section are subject to annulment in pursuance
40of a resolution of either House of Parliament.

Mental Capacity (Amendment) BillPage 5

(6) Schedule 2 makes minor and consequential amendments.

6 Extent, commencement and short title

(1) This Act extends to England and Wales only.

(2) This section, and section 5 except subsection (6), come into force on the day this
5Act is passed.

(3) The other provisions of this Act come into force—

(a) for the purpose only of enabling the exercise of any power to make
regulations, on the day this Act is passed;

(b) for all other purposes, on whatever day the Secretary of State appoints
10by regulations.

(4) Different days may be appointed for different purposes or different areas.

(5) The Secretary of State may by regulations make transitional or saving
provision in connection with the coming into force of any provision of this Act.

(6) Regulations under subsection (5) may make different provision for different
15purposes or different areas.

(7) The power to make regulations under this section is exercisable by statutory
instrument.

(8) This Act may be cited as the Mental Capacity (Amendment) Act 2019.

Mental Capacity (Amendment) BillPage 6

SCHEDULES

Section 2(4)

SCHEDULE 1 Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Section 4A(5)

Deprivation of liberty: authorisation of arrangements enabling care
5and treatment

Part 1 Introductory and interpretation

Contents of this Schedule

1 In this Schedule—

  • 10Part 1 (this Part) describes the arrangements dealt with and
    gives definitions (including “the responsible body”)

  • Part 2 sets out the procedure for the responsible body to
    authorise arrangements

  • Part 3 is about the duration, renewal, variation and review of
    15authorisations

  • Part 4 is about Approved Mental Capacity Professionals
    (involved under Part 2 in certain cases)

  • Part 5 is about appointing persons to give representation and
    support in connection with arrangements

  • 20Part 6 gives power to provide for monitoring and reporting

  • Part 7 excludes—

    (a)

    mental health arrangements, and

    (b)

    arrangements that are not in accordance with mental
    health requirements

  • 25Part 8 contains transitory provision.

Arrangements this Schedule applies to

2 (1) This Schedule applies to arrangements—

(a) for enabling the care or treatment of a person (the “cared-
for person”) described in sub-paragraph (2),

(b) 30that give rise to a deprivation of the cared-for person’s
liberty, and

Mental Capacity (Amendment) BillPage 7

(c) that are not excluded by Part 7.

(2) The cared-for person must be a person who—

(a) is aged 16 or over,

(b) lacks capacity to consent to the arrangements, and

(c) 5has a mental disorder.

(3) The arrangements may for example be—

(a) for the cared-for person to reside in a particular place;

(b) for the cared-for person to receive care or treatment at a
particular place;

(c) 10for the means and manner of transport for the cared-for
person to, from or between particular places.

(4) The arrangements may be ones that are proposed, or that are being
carried out.

(5) If they are proposed, references in this Schedule to where or how
15they are carried out are to whatever is proposed in the
arrangements.

(6) If provision to which sub-paragraph (1)(a) and (b) apply and other
provision are combined, the “arrangements” for the purposes of
this Schedule do not include that other provision.

20Definitions

3 In this Schedule—

  • “Approved Mental Capacity Professional” means a person
    approved in accordance with Part 4 as an Approved
    Mental Capacity Professional for the purposes of this
    25Schedule;

  • “arrangements” must be read in accordance with paragraph
    2;

  • “authorisation” means authorisation of arrangements under
    this Schedule, and “authorise” and related words are to be
    30read accordingly;

  • “authorisation conditions” has the meaning given by
    paragraph 12;

  • “authorisation record” has the meaning given by paragraph
    24;

  • 35“care home” means—

    (a)

    a place which is a care home within the meaning
    given by section 3 of the Care Standards Act 2000, or

    (b)

    a place in Wales at which a care home service within
    the meaning of Part 1 of the Regulation and
    40Inspection of Social Care (Wales) Act 2016 (anaw 2) is
    provided wholly or mainly to persons aged 18 or
    over;

  • “care home arrangements” means arrangements, in relation
    to a cared-for person aged 18 or over, carried out wholly or
    45partly in a care home;

  • “care home manager”, in relation to a care home or care home
    arrangements, means—

    Mental Capacity (Amendment) BillPage 8

    (a)

    in relation to England, the person registered, or
    required to be registered, under Chapter 2 of Part 1 of
    the Health and Social Care Act 2008 in respect of the
    provision of residential accommodation, together
    5with nursing or personal care, in the care home, and

    (b)

    in relation to Wales, the person who manages the care
    home service, within the meaning of Part 1 of the
    Regulation and Inspection of Social Care (Wales) Act
    2016 (anaw 2), at the care home, by virtue of
    10regulations made under section 28 of that Act;

  • “cared-for person” has the meaning given by paragraph 2(1);

  • “clinical commissioning group” means a body established
    under section 14D of the National Health Service Act 2006;

  • “English responsible body” has the meaning given by
    15paragraph 10;

  • “hospital” has the meaning given by paragraph 5;

  • “hospital manager” has the meaning given by paragraph 7;

  • “local authority” has the meaning given by paragraph 4;

  • “Local Health Board” means a Local Health Board
    20established under section 11 of the National Health Service
    (Wales) Act 2006;

  • “mental disorder” has the meaning given by section 1(2) of
    the Mental Health Act;

  • “mental health arrangements” has the meaning given by
    25paragraph 43;

  • “mental health requirements” has the meaning given by
    paragraph 54;

  • “responsible body” has the meaning given by paragraph 6;

  • “specified”, except in paragraph 54, means specified in an
    30authorisation record;

  • “Welsh responsible body” has the meaning given by
    paragraph 11.

Local authority

4 (1) “Local authority” means—

(a) 35in England—

(i) the council of a county;

(ii) the council of a district for which there is no county
council;

(iii) the council of a London borough;

(iv) 40the Common Council of the City of London;

(v) the Council of the Isles of Scilly;

(b) in Wales, the council of a county or county borough.

(2) For the purposes of this Schedule the area of the Common Council
of the City of London is to be treated as including the Inner
45Temple and the Middle Temple.

Hospital

5 (1) “Hospital” means an NHS hospital or an independent hospital.

Mental Capacity (Amendment) BillPage 9

(2) NHS hospital” means—

(a) a health service hospital as defined by section 275 of the
National Health Service Act 2006 or section 206 of the
National Health Service (Wales) Act 2006, or

(b) 5a hospital as defined by section 206 of the National Health
Service (Wales) Act 2006 vested in a Local Health Board.

(3) “Independent hospital”—

(a) in relation to England, means a hospital as defined by
section 275 of the National Health Service Act 2006 that is
10not an NHS hospital, and

(b) in relation to Wales, means a hospital as defined by section
2 of the Care Standards Act 2000 that is not an NHS
hospital.

Responsible body

6 15The responsible body, in relation to a cared-for person, means—

(a) if the arrangements are carried out mainly in a hospital, the
hospital manager;

(b) if paragraph (a) does not apply and the arrangements are
carried out mainly through—

(i) 20the 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
25by a Local Health Board,

that clinical commissioning group or Local Health Board;

(c) if neither paragraph (a) nor paragraph (b) applies, the
responsible local authority (see paragraph 9).

7 (1) “Hospital manager” means—

(a) 30if the hospital—

(i) is vested in a relevant national authority for the
purposes of its functions under the National Health
Service Act 2006 or the National Health Service
(Wales) Act 2006, or

(ii) 35consists of any accommodation provided by a local
authority and used as a hospital by or on behalf of
a relevant national authority under either of those
Acts,

the Local Health Board or Special Health Authority
40responsible for the administration of the hospital;

(b) in relation to England, if the hospital falls within
paragraph (a)(i) or (ii) and no Special Health Authority has
responsibility for its administration, the Secretary of State;

(c) if the hospital is vested in an NHS trust or an NHS
45foundation trust, that trust;

(d) if the hospital is an independent hospital—

(i) in relation to England, the person registered, or
required to be registered, under Chapter 2 of Part 1
of the Health and Social Care Act 2008 in respect of