Mental Capacity (Amendment) Bill (HC Bill 323)

Mental Capacity (Amendment) BillPage 10

regulated activities (within the meaning of that
Part) carried on in the hospital, or

(ii) in relation to Wales, the person registered, or
required to be registered, under Part 2 of the Care
5Standards Act 2000 in respect of the hospital;

(e) if the hospital is an independent hospital and there is no
person registered, or required to be registered, as
described in sub-paragraphs (i) and (ii) of paragraph (d)

(i) in relation to a hospital in England, the Secretary of
10State, or

(ii) in relation to a hospital in Wales, the Welsh
Ministers.

(2) In sub-paragraph (1) “relevant national authority” means—

(a) the Secretary of State,

(b) 15the Welsh Ministers, or

(c) the Secretary of State and the Welsh Ministers acting
jointly.

8 In paragraph 6(b)NHS continuing health care” is to be construed
in accordance with standing rules under section 6E of the National
20Health Service Act 2006.

9 (1) In paragraph 6(c), “responsible local authority”, in relation to a
cared-for person aged 18 or over, means—

(a) if there is an Education, Health and Care plan for the
cared-for person, the local authority responsible for
25maintaining that plan;

(b) if there is an individual development plan for the cared-for
person—

(i) the local authority responsible for maintaining that
plan, or

(ii) 30if the plan is not maintained by a local authority,
the local authority whose area the cared-for person
is in;

(c) if neither paragraph (a) nor paragraph (b) applies and the
cared-for person has needs for care and support which are
35being met under Part 1 of the Care Act 2014 or under Part
4 of the Social Services and Well-being (Wales) Act 2014
(anaw 4), the local authority meeting those needs;

(d) in any other case, the local authority determined in
accordance with sub-paragraph (6).

(2) 40If more than one local authority is meeting the needs of a cared-for
person for care and support under Part 1 of the Care Act 2014 the
responsible local authority is the local authority for the area in
which the cared-for person is ordinarily resident for the purposes
of that Part of that Act.

(3) 45If more than one local authority is meeting the needs for care and
support of a cared-for person under the Social Services and Well-
being (Wales) Act 2014 (anaw 4), the responsible local authority is
the local authority for the area in which the cared-for person is
ordinarily resident for the purposes of that Act.

Mental Capacity (Amendment) BillPage 11

(4) If the cared-for person is having needs for care and support met
under both of the Acts mentioned in sub-paragraph (1)(c), the
responsible local authority is the local authority determined in
accordance with sub-paragraph (6).

(5) 5In paragraph 6(c), “responsible local authority”, in relation to a
cared-for person aged 16 or 17, means—

(a) if there is an Education, Health and Care plan for the
cared-for person, the local authority responsible for
maintaining that plan;

(b) 10if there is an individual development plan for the cared-for
person—

(i) the local authority responsible for maintaining that
plan, or

(ii) if the plan is not maintained by a local authority,
15the local authority whose area the cared-for person
is in;

(c) if neither paragraph (a) nor paragraph (b) applies and the
cared-for person is being provided with accommodation—

(i) under section 20 of the Children Act 1989, or

(ii) 20under section 76 of the Social Services and Well-
being (Wales) Act 2014 (anaw 4),

the local authority providing that accommodation;

(d) if none of paragraphs (a) to (c) applies and the cared-for
person is subject to a care order under section 31 of the
25Children Act 1989 or an interim care order under section 38
of that Act, the local authority that is responsible under the
order for the care of the cared-for person;

(e) if none of paragraphs (a) to (d) applies, the local authority
determined in accordance with sub-paragraph (6).

(6) 30In the cases mentioned in sub-paragraphs (1)(d), (4) and (5)(e), the
“responsible local authority” is—

(a) if the arrangements provide for the cared-for person to
reside in one place, the local authority for the area in which
that place is situated;

(b) 35if the arrangements provide for the cared-for person to
reside in more than one place, the local authority for the
area in which the main place of residence is situated;

(c) in any other case, the local authority for the area in which
the arrangements are mainly carried out.

(7) 40If a building is situated in the areas of two or more local
authorities, it is to be regarded for the purposes of sub-paragraph
(6) as situated in whichever of the areas the greater (or greatest)
part of the building is situated.

(8) In this paragraph—

  • 45“Education, Health and Care plan” means a plan within the
    meaning of section 37(2) of the Children and Families Act
    2014;

  • “individual development plan” means a plan within the
    meaning of section 10 of the Additional Learning Needs
    50and Education Tribunal (Wales) Act 2018 (anaw 2).

Mental Capacity (Amendment) BillPage 12

10 “English responsible body” means—

(a) a hospital manager of a hospital in England;

(b) a clinical commissioning group;

(c) a local authority in England.

11 5“Welsh responsible body” means—

(a) a hospital manager of a hospital in Wales;

(b) a Local Heath Board;

(c) a local authority in Wales.

Part 2 10Authorisation of arrangements

The authorisation conditions

12 The authorisation conditions are that—

(a) the cared-for person lacks capacity to consent to the
arrangements,

(b) 15the cared-for person has a mental disorder, and

(c) the arrangements are necessary to prevent harm to the
cared-for person and proportionate in relation to the
likelihood and seriousness of harm to the cared-for person.

Rights to information

13 (1) 20As 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
25under paragraph 39 to represent and support the cared-for
person,

(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
30under 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) 35the 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) 40the 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),

Mental Capacity (Amendment) BillPage 13

(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
5to the cared-for person.

Authorisation

14 The responsible body may authorise arrangements—

(a) under paragraph 15, if the conditions in that paragraph are
met, or

(b) 10under paragraph 16 if—

(i) the arrangements are care home arrangements,

(ii) the responsible body decides that authorisation
should be determined under that paragraph
instead of under paragraph 15, and

(iii) 15the conditions in paragraph 16 are met.

15 The conditions in this paragraph are that—

(a) the responsible body is satisfied that this Schedule applies
to the arrangements,

(b) the responsible body is satisfied, on the basis of the
20determinations required by paragraphs 18 and 19, that the
authorisation conditions are met,

(c) the responsible body has carried out consultation under
paragraph 20,

(d) the responsible body is satisfied that any requirement
25under paragraph 39 or 40, that arises in relation to the
arrangements before they are authorised, has been
complied with,

(e) a pre-authorisation review, arranged by the responsible
body, has been carried out in accordance with paragraphs
3021 to 23,

(f) the person carrying out the review has determined—

(i) under paragraph 22, that the authorisation
conditions are met, or

(ii) under paragraph 23, that it is reasonable for the
35responsible body to conclude that those conditions
are met, and

(g) a draft authorisation record has been prepared in
accordance with paragraph 24.

16 The conditions in this paragraph are that—

(a) 40the care home manager has provided the responsible body
with a statement in accordance with paragraph 17,

(b) having regard to the statement (and the accompanying
material), the responsible body is satisfied—

(i) that this Schedule applies to the arrangements,

(ii) 45that the authorisation conditions are met, and

(iii) that the care home manager has carried out
consultation under paragraph 20,

Mental Capacity (Amendment) BillPage 14

(c) the responsible body is satisfied that any requirement
under paragraph 39 or 40, that arises in relation to the
arrangements before they are authorised, has been
complied with,

(d) 5a pre-authorisation review, arranged by the responsible
body, has been carried out in accordance with paragraphs
21 to 23, and

(e) the person carrying out the review has determined—

(i) under paragraph 22, that the authorisation
10conditions are met, or

(ii) under paragraph 23, that it is reasonable for the
responsible body to conclude that those conditions
are met.

17 (1) A statement for the purposes of paragraph 16(a) is a statement in
15writing by the care home manager—

(a) that the cared-for person is aged 18 or over,

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

(c) that the arrangements are not excluded by Part 7,

(d) 20that the determinations required by paragraphs 18 and 19
have been made,

(e) that the care home manager has carried out consultation
under paragraph 20, and

(f) that the care home manager—

(i) 25is satisfied that paragraph 21(2)(a) or (b) applies,

(ii) is satisfied that neither applies, or

(iii) is not satisfied that a decision can be made as to
whether either applies.

(2) The statement—

(a) 30must include the reasons for what is stated under sub-
paragraph (1)(b) and (f);

(b) must be accompanied by—

(i) a record of the assessments on which the
determinations required by paragraphs 18 and 19
35were made,

(ii) evidence of the consultation mentioned in sub-
paragraph (1)(e), and

(iii) a draft authorisation record prepared in
accordance with paragraph 24.

40Determinations made on capacity and medical assessments

18 (1) The determinations required by this paragraph are—

(a) a determination made on an assessment in respect of the
cared-for person, that the person lacks capacity to consent
to the arrangements, and

(b) 45a determination made on an assessment in respect of the
cared-for person, that the person has a mental disorder.

(2) An assessment must be carried out by a person who appears to the
relevant person to have appropriate experience and knowledge.

Mental Capacity (Amendment) BillPage 15

(3) But if the arrangements are care home arrangements and
authorisation is being determined under paragraph 16, an
assessment may not be carried out by a person who has a
connection, of a kind prescribed by regulations, with a care home.

(4) 5Regulations made by the appropriate authority under sub-
paragraph (3)

(a) may make provision about a connection of any kind
(financial or otherwise), and

(b) may make different provision for assessments under sub-
10paragraph (1)(a) and sub-paragraph (1)(b).

(5) The “appropriate authority” means—

(a) where the assessment is in relation to an authorisation by
an English responsible body, the Secretary of State, and

(b) where the assessment is in relation to an authorisation by
15a Welsh responsible body, the Welsh Ministers.

(6) The assessment may be one carried out for an earlier authorisation
or for any other purpose, provided that it appears to the relevant
person that it is reasonable to rely on the assessment.

(7) The relevant person must have regard to—

(a) 20the length of time since the assessment was carried out;

(b) the purpose for which the assessment was carried out;

(c) whether there has been a change in the cared-for person’s
condition that is likely to affect the determination made on
the assessment.

(8) 25In this paragraph “relevant person” means—

(a) the care home manager, if the arrangements are care home
arrangements and authorisation is being determined
under paragraph 16, or

(b) the responsible body, in any other case.

30Determination that arrangements are necessary and proportionate

19 (1) The determination required by this paragraph is a determination
made on an assessment that the arrangements are necessary to
prevent harm to the cared-for person and proportionate in relation
to the likelihood and seriousness of harm to the cared-for person.

(2) 35When making a determination under this paragraph regard must
be had (amongst other matters) to the cared-for person’s wishes
and feelings in relation to the arrangements.

(3) The determination must be made by a person who appears—

(a) to the care home manager, if the arrangements are care
40home arrangements and authorisation is being determined
under paragraph 16, or

(b) to the responsible body, in any other case,

to have appropriate experience and knowledge to make the
determination.

(4) 45If the arrangements are care home arrangements and
authorisation is being determined under paragraph 16, an

Mental Capacity (Amendment) BillPage 16

assessment may not be carried out by a person who has a
connection, of a kind prescribed by regulations, with a care home.

(5) Regulations made by the appropriate authority under sub-
paragraph (4) may make provision about a connection of any kind
5(financial or otherwise).

(6) The “appropriate authority” means—

(a) where the assessment is in relation to an authorisation by
an English responsible body, the Secretary of State, and

(b) where the assessment is in relation to an authorisation by
10a Welsh responsible body, the Welsh Ministers.

Consultation

20 (1) Consultation under this paragraph must be carried out—

(a) if the arrangements are care home arrangements and
authorisation is being determined under paragraph 16, by
15the care home manager;

(b) otherwise, by the responsible body.

(2) The following must be consulted—

(a) the cared-for person,

(b) anyone named by the cared-for person as someone to be
20consulted about arrangements of the kind in question,

(c) anyone engaged in caring for the cared-for person or
interested in the cared-for person’s welfare,

(d) any donee of a lasting power of attorney or an enduring
power of attorney (within the meaning of Schedule 4)
25granted by the cared-for person,

(e) any deputy appointed for the cared-for person by the
court, and

(f) any appropriate person and any independent mental
capacity advocate concerned (see Part 5).

(3) 30The main purpose of the consultation required by sub-paragraph
(2) is to try to ascertain the cared-for person’s wishes or feelings in
relation to the arrangements.

(4) If it is not practicable or appropriate to consult a particular person
falling within sub-paragraph (2) the duty to consult that person
35does not apply.

Pre-authorisation review

21 (1) A pre-authorisation review for the purposes of paragraph 15(e) or
16(d) must not be by—

(a) a person who is involved—

(i) 40in the day-to-day care of the cared-for person, or

(ii) in providing any treatment to the cared-for person,
or

(b) a person who has a connection, of a kind prescribed by
regulations, with a care home.

Mental Capacity (Amendment) BillPage 17

(2) The review must be by an Approved Mental Capacity Professional
if—

(a) the arrangements provide for the cared-for person to
reside in a particular place, and it is reasonable to believe
5that the cared-for person does not wish to reside in that
place,

(b) the arrangements provide for the cared-for person to
receive care or treatment at a particular place, and it is
reasonable to believe that the cared-for person does not
10wish to receive care or treatment at that place,

(c) the arrangements provide for the cared-for person to
receive care or treatment mainly in an independent
hospital, or

(d) the case is referred by the responsible body to an
15Approved Mental Capacity Professional and that person
accepts the referral.

(3) In determining whether either of paragraph (a) or (b) of sub-
paragraph (2) applies, the responsible body must consider the
views of any relevant person about the wishes of the cared-for
20person that are brought to the responsible body’s attention.

(4) In sub-paragraph (3) “relevant person” means a person engaged in
caring for the cared-for person or a person interested in the cared-
for person’s welfare.

(5) Regulations made by the appropriate authority under sub-
25paragraph (1)(b) may make provision about a connection of any
kind (financial or otherwise).

(6) The “appropriate authority” means—

(a) where the pre-authorisation review is in relation to an
authorisation by an English responsible body, the
30Secretary of State, and

(b) where the pre-authorisation review is in relation to an
authorisation by a Welsh responsible body, the Welsh
Ministers.

22 (1) If the review is by an Approved Mental Capacity Professional, the
35Approved Mental Capacity Professional must—

(a) review the information on which the responsible body
relies, and

(b) determine whether the authorisation conditions are met.

(2) Before making the determination the Approved Mental Capacity
40Professional must—

(a) meet with the cared-for person, if it appears to the
Approved Mental Capacity Professional to be appropriate
and practicable to do so, and

(b) consult any other person listed in paragraph 20(2), or take
45any other action, if it appears to the Approved Mental
Capacity Professional to be appropriate and practicable to
do so.

23 If the review is not by an Approved Mental Capacity Professional,
the person carrying out the review must—

Mental Capacity (Amendment) BillPage 18

(a) review the information on which the responsible body
relies, and

(b) determine whether it is reasonable for the responsible
body to conclude that the authorisation conditions are met.

5Authorisation record

24 (1) An authorisation record is a record relating to a cared-for person,
specifying all arrangements authorised for the time being for that
person, and specifying in relation to any arrangements—

(a) the time from which the authorisation has effect, and when
10it is to cease to have effect under paragraph 26(1), (2) or (3),

(b) the programme for reviewing the authorisation,

(c) how the requirements of Part 5 are complied with, and

(d) anything else this Schedule requires to be specified.

(2) An authorisation record may include any other information.

(3) 15When the responsible body authorises arrangements the draft
authorisation record required by paragraph 15(g) or 17(2)(b)(iii)

(a) becomes the authorisation record, and

(b) supersedes any earlier authorisation record.

(4) The responsible body must revise the authorisation record if there
20is any change in any of the matters that are specified or required
to be specified in it.

Part 3 Duration, renewal, variation and review of authorisation

Time for which authorisation has effect

25 (1) 25An authorisation has effect from the time at which the responsible
body gives the authorisation, unless at that time the responsible
body specifies a later time.

(2) The time specified must not be later than the end of the period of
28 days beginning with the day on which the responsible body
30gives the authorisation.

26 (1) An authorisation ceases to have effect (if not renewed)—

(a) at the end of the period of 12 months beginning with the
day it first has effect, or

(b) at the end of any shorter period specified by the
35responsible body at the time it gives the authorisation.

(2) If the authorisation is renewed in accordance with paragraph 29,
it ceases to have effect at the end of the renewal period.

(3) If the responsible body at any time determines that an
authorisation is to cease to have effect from any earlier day, it
40ceases to have effect from that day.

Mental Capacity (Amendment) BillPage 19

(4) An authorisation ceases to have effect if, at any time, the
responsible body believes or ought reasonably to suspect that any
of the authorisation conditions are not met.

(5) An authorisation ceases to have effect in relation to arrangements
5so far as at any time they are not in accordance with mental health
requirements.

Notification that arrangements have ceased to have effect

27 If an authorisation of arrangements ceases to have effect (in whole
or in part) under paragraph 26(4) or (5), the responsible body must
10take reasonable steps to ensure any person likely to be carrying
out the arrangements is notified.

Authorisation coming to an end early: arrangements to be treated as authorised

28 (1) This paragraph applies if an authorisation ceases to have effect (in
whole or in part) under paragraph 26(4) or (5).

(2) 15For the purposes of section 4C (carrying out of authorised
arrangements: restriction of liability) the arrangements are to be
treated as authorised unless the person carrying out the
arrangements knows or ought to know that—

(a) the arrangements are no longer authorised,

(b) 20any of the authorisation conditions are not met, or

(c) the arrangements are not in accordance with mental health
requirements.

Renewal

29 (1) The responsible body may, on one or more occasions, renew an
25authorisation in accordance with paragraph 31 or 32 for a specified
period (“the renewal period”) of—

(a) 12 months or less, on the first renewal, and

(b) 3 years or less, on any subsequent renewal.

(2) An authorisation which has ceased to have effect cannot be
30renewed.

30 The responsible body may renew an authorisation—

(a) under paragraph 31, if the conditions in that paragraph are
met, or

(b) under paragraph 32 if—

(i) 35the authorisation relates to care home
arrangements,

(ii) the responsible body decides that renewal should
be determined under that paragraph instead of
under paragraph 31, and

(iii) 40the conditions in paragraph 32 are met.

31 The conditions in this paragraph are that—

(a) the responsible body is satisfied—

(i) that the authorisation conditions continue to be
met, and