Mental Capacity (Amendment) Bill (HC Bill 323)

Mental Capacity (Amendment) BillPage 20

(ii) that it is unlikely that there will be any significant
change in the cared-for person’s condition during
the renewal period which would affect whether
those conditions are met, and

(b) 5the responsible body has carried out consultation under
paragraph 20.

32 The conditions in this paragraph are that—

(a) the care home manager has provided the responsible body
with a statement in accordance with paragraph 33,

(b) 10having regard to the statement (and the accompanying
material), the responsible body is satisfied—

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

(ii) that it is unlikely that there will be any significant
15change in the cared-for person’s condition during
the renewal period which would affect whether
those conditions are met, and

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

33 (1) 20A statement for the purposes of paragraph 32(a) is a statement in
writing by the care home manager—

(a) that the authorisation conditions continue to be met,

(b) that it is unlikely that there will be any significant change
in the cared-for person’s condition during the renewal
25period which would affect whether those conditions are
met, and

(c) that the care home manager has carried out consultation
under paragraph 20.

(2) The statement must be accompanied by evidence of the
30consultation.

Variation

34 The responsible body may vary an authorisation if the responsible
body is satisfied—

(a) that consultation under paragraph 20 has been carried out,
35and

(b) that it is reasonable to make the variation.

Reviews

35 (1) In this paragraph “the reviewer” means the responsible body
unless, in relation to care home arrangements, the responsible
40body decides the care home manager should be the reviewer for
the purposes of this paragraph.

(2) For any authorisation the responsible body must specify a
programme of regular reviews that the reviewer must carry out.

(3) The reviewer must also carry out a review—

(a) 45if the authorisation is varied under paragraph 34;

Mental Capacity (Amendment) BillPage 21

(b) if a reasonable request is made by a person with an interest
in the arrangements;

(c) if the cared-for person becomes subject to mental health
arrangements;

(d) 5if the cared-for person becomes subject to mental health
requirements;

(e) if sub-paragraph (4) applies;

(f) if (in any other case) the reviewer becomes aware of a
significant change in the cared-for person’s condition or
10circumstances.

(4) This sub-paragraph applies where—

(a) the arrangements provide for the cared-for person to
reside in, or to receive care or treatment at, a specified
place,

(b) 15the reviewer becomes aware that the cared-for person does
not wish to reside in, or to receive care or treatment at, that
place, and

(c) the pre-authorisation review under paragraph 21 was not
by an Approved Mental Capacity Professional.

(5) 20For the purposes of sub-paragraph (4)(b)

(a) the reviewer must consider all the circumstances so far as
they are reasonably ascertainable, including the cared-for
person’s behaviour, wishes, feelings, views, beliefs and
values, but

(b) 25circumstances from the past are to be considered only so
far as it is still appropriate to consider them.

(6) The care home manager must report to the responsible body on
any review the manager carries out.

(7) On any review where sub-paragraph (4) applies, the reviewer
30must refer the authorisation to an Approved Mental Capacity
Professional for a determination as to whether the authorisation
conditions are met.

(8) Before making the determination, the Approved Mental Capacity
Professional must—

(a) 35review the authorisation,

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

(c) consult any other person listed in paragraph 20(2), or take
40any other action, if it appears to the Approved Mental
Capacity Professional to be appropriate and practicable to
do so.

Part 4 Approved Mental Capacity Professionals

36 45Each local authority must make arrangements—

(a) for persons to be approved as Approved Mental Capacity
Professionals, and

Mental Capacity (Amendment) BillPage 22

(b) to ensure that enough Approved Mental Capacity
Professionals are available for its area.

37 (1) The appropriate authority may by regulations—

(a) prescribe the criteria which must be met for a person to be
5eligible for approval as an Approved Mental Capacity
Professional;

(b) prescribe matters which a local authority must or may take
into account when deciding whether to approve a person
as an Approved Mental Capacity Professional;

(c) 10provide for a prescribed body to approve training for
persons who are, or who wish to become, Approved
Mental Capacity Professionals.

(2) Regulations under sub-paragraph (1)(a) may include criteria
relating to qualifications, training or experience.

(3) 15If regulations made by the Secretary of State under sub-paragraph
(1)(c) provide for Social Work England to approve training, the
regulations may—

(a) give Social Work England power to charge fees for
approval;

(b) 20give Social Work England power to make rules in relation
to the charging of fees;

(c) make provision in connection with the procedure for
making those rules (including provision requiring Social
Work England to obtain the Secretary of State’s approval
25before making rules).

(4) Section 50(2) to (7) of the Children and Social Work Act 2017 apply
for the purposes of sub-paragraph (3) as they apply for the
purposes of that section.

(5) “Prescribed” means prescribed by the regulations.

(6) 30The “appropriate authority” means—

(a) the Secretary of State, in relation to the approval of a
person by, or a person approved by, a local authority
whose area is in England, and

(b) the Welsh Ministers, in relation to the approval of a person
35by, or a person approved by, a local authority whose area
is in Wales.

Part 5 Appointment of IMCA

Appointment of Independent Mental Capacity Advocate

38 (1) 40Paragraphs 39 and 40 apply to the responsible body at all times
while arrangements are authorised or are being proposed.

(2) In those paragraphs “IMCA” means an independent mental
capacity advocate.

39 (1) The responsible body must take all reasonable steps to appoint an
45IMCA to represent and support the cared-for person if—

(a) sub-paragraph (2) or (3) provides that an IMCA should be
appointed, and

(b) sub-paragraphs (4) and (5) do not apply.

(2) An IMCA should be appointed if the cared-for person—

(a) 50has capacity to consent to being represented and
supported by an IMCA, and

(b) makes a request to the responsible body for an IMCA to be
appointed.

(3) An IMCA should be appointed if—

(a) 55the cared-for person lacks capacity to consent to being
represented and supported by an IMCA, unless

(b) the responsible body is satisfied that being represented
and supported by an IMCA would not be in the cared-for
person’s best interests.

(4) 60This paragraph does not apply if an IMCA has been appointed
under this paragraph and the appointment has not ceased to have
effect.

(5) This paragraph does not apply if the responsible body is satisfied
that there is a person (an “appropriate person”) who—

(a) 65would be a suitable person to represent and support the
cared-for person,

(b) consents to representing and supporting the cared-for
person, and

(c) is not engaged in providing care or treatment for the cared-
70for person in a professional capacity.

(6) A person is not to be regarded as a suitable person unless—

(a) where the cared-for person has capacity to consent to being
represented and supported by that person, the cared-for
person does consent, or

(b) 75where the cared-for person lacks capacity to consent to
being represented and supported by that person, the
responsible body is satisfied that being represented and
supported by that person would be in the cared-for
person’s best interests.

40 (1) 80If the cared-for person has an appropriate person, the responsible
body must take all reasonable steps to appoint an IMCA to
support the appropriate person if—

(a) sub-paragraph (2) or (3) provides that an IMCA should be
appointed, and

(b) 85sub-paragraph (4) does not apply.

(2) An IMCA should be appointed if the appropriate person—

(a) has capacity to consent to being supported by an IMCA,
and

(b) makes a request to the responsible body for an IMCA to be
90appointed.

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(3) An IMCA should be appointed if—

(a) the appropriate person lacks capacity to consent to being
supported by an IMCA, and

(b) the responsible body is satisfied the appropriate person’s
5being supported by an IMCA would be in the cared-for
person’s best interests.

(4) This paragraph does not apply if an IMCA has been appointed
under this paragraph and the appointment has not ceased to have
effect.

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Part 6 Monitoring and reporting

41 (1) The appropriate authority may by regulations make provision for,
and in connection with, requiring one or more bodies prescribed
5by the regulations to monitor, and report on, the operation of this
Schedule.

(2) The regulations may include provision giving a prescribed body
authority—

(a) to visit any place where arrangements authorised under
10this Schedule are carried out;

(b) to meet with cared-for persons;

(c) to require the production of, and to inspect, records
relating to the care or treatment of persons.

(3) The “appropriate authority” means—

(a) 15in relation to the operation of this Schedule in relation to
England, the Secretary of State, and

(b) in relation to the operation of this Schedule in relation to
Wales, the Welsh Ministers.

Part 7 20Excluded arrangements: mental health

Excluded arrangements

42 This Schedule does not apply to arrangements if—

(a) they are mental health arrangements (see paragraphs 43 to
53), or

(b) 25they are not in accordance with mental health
requirements (see paragraph 54).

Kinds of mental health arrangements

43 For the purposes of this Schedule arrangements in relation to a
person (“P”) are “mental health arrangements” if paragraph 44, 45,
3046, 47 or 48 applies.

44 This paragraph applies if—

(a) P is subject to the hospital treatment regime, and

(b) P is detained in a hospital under that regime.

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45 This paragraph applies if—

(a) P is subject to the hospital treatment regime,

(b) P is not detained in a hospital under that regime, and

(c) the arrangements are for enabling medical treatment for
5mental disorder in a hospital.

46 This paragraph applies if P is subject to—

(a) a community treatment order under section 17A of the
Mental Health Act, or

(b) anything which has the same effect, under another
10England and Wales enactment,

and the arrangements are for enabling medical treatment for
mental disorder in a hospital.

47 (1) This paragraph applies if the following conditions are met.

(2) Condition 1 is that P is subject to—

(a) 15a guardianship application under section 7 of the Mental
Health Act,

(b) a guardianship order under section 37 of that Act, or

(c) anything which has the same effect as something within
paragraph (a) or (b), under another England and Wales
20enactment.

(3) Condition 2 is that the arrangements are or include arrangements
for P to be accommodated in a hospital for the purpose of being
given medical treatment for mental disorder.

(4) Condition 3 is that P objects—

(a) 25to being accommodated in a hospital for that purpose, or

(b) to being given some or all of that treatment.

(5) Condition 4 is that a donee or deputy has not made a valid
decision to consent to each matter to which P objects.

(6) For provision about determining whether P objects see paragraph
3049.

48 (1) This paragraph applies if the following conditions are met.

(2) Condition 1 is that—

(a) an application in respect of P could be made under section
2 or 3 of the Mental Health Act, and

(b) 35P could be detained in a hospital in pursuance of such an
application, were one made.

(3) Condition 2 is that P is not subject to any of these—

(a) the hospital treatment regime;

(b) a community treatment order under section 17A of the
40Mental Health Act;

(c) a guardianship application under section 7 of the Mental
Health Act;

(d) a guardianship order under section 37 of the Mental
Health Act;

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(e) anything which has the same effect as something within
paragraph (b), (c) or (d), under another England and Wales
enactment.

(4) Condition 3 is that the arrangements are or include arrangements
5for P to be accommodated in a hospital for the purpose of being
given medical treatment for mental disorder.

(5) Condition 4 is that P objects—

(a) to being accommodated in a hospital for that purpose, or

(b) to being given some or all of that treatment.

(6) 10Condition 5 is that a donee or deputy has not made a valid
decision to consent to each matter to which P objects.

(7) For provision about determining whether P objects see paragraph
49.

49 (1) In determining whether P objects, regard must be had to all the
15circumstances (so far as they are reasonably ascertainable),
including the following—

(a) P’s behaviour;

(b) P’s wishes and feelings;

(c) P’s views, beliefs and values.

(2) 20But regard is to be had to circumstances from the past only so far
as it is still appropriate to have regard to them.

Mental health arrangements: the hospital treatment regime

50 (1) P is subject to the hospital treatment regime if P is subject to—

(a) an application, order or direction listed in column 1 of the
25Table, under the section of the Mental Health Act listed in
column 2, or

(b) anything that has the same effect as any of those, under
another England and Wales enactment,

subject to sub-paragraph (2).

(2) 30P is not subject to the hospital treatment regime during any period
for which P is subject to—

(a) a community treatment order under section 17A of the
Mental Health Act, or

(b) anything which has the same effect, under another
35England and Wales enactment.

Obligation Mental Health Act
section
Application for admission for assessment Section 2
Application for admission for assessment Section 4
Application for admission for treatment 40Section 3
Order for remand to hospital Section 35

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Obligation Mental Health Act
section
Order for remand to hospital Section 36
Hospital order Section 37
Interim hospital order 5Section 38
Order for detention in hospital Section 44
Hospital direction Section 45A
Transfer direction Section 47
Transfer direction Section 48
Hospital order 10Section 51
Mental health arrangements: other definitions

51 In this Part—

  • “donee” means a donee of a lasting power of attorney
    granted by P;

  • 15“England and Wales enactment” means an enactment, in the
    Mental Health Act or elsewhere, which extends to England
    and Wales (whether or not it also extends elsewhere);

  • “hospital” has the same meaning as in Part 2 of the Mental
    Health Act;

  • 20“learning disability” has the meaning given by section 1(4) of
    the Mental Health Act;

  • “medical treatment” is to be read in accordance with
    paragraph 52.

52 In “medical treatment for mental disorder”—

(a) 25“medical treatment” has the same meaning as in the
Mental Health Act (see section 145(1) and (4)), but

(b) in the case of a person with learning disability, the medical
treatment is not to be considered by reason of that
disability to be for mental disorder unless the disability is
30associated with abnormally aggressive or seriously
irresponsible conduct by that person.

53 A decision of a donee or deputy is valid if it is made—

(a) within the scope of the person’s authority as donee or
deputy, and

(b) 35in accordance with Part 1 of this Act.

Mental health requirements

54 (1) In this Schedule “mental health requirements” means any of the
following—

(a) a requirement imposed in respect of a person by a
40guardian exercising the power under section 8 of the
Mental Health Act;

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(b) a condition or direction imposed or given in respect of a
person by a responsible clinician exercising the power
under section 17 of the Mental Health Act (leave of absence
from hospital);

(c) 5a condition specified by a responsible clinician in a
community treatment order made in respect of a person
under section 17A of the Mental Health Act (for the
imposition of conditions, see section 17B of that Act);

(d) a requirement imposed by a guardian in respect of a
10person who is the subject of a guardianship order under
section 37 of the Mental Health Act (see section 40 of and
Part 1 of Schedule 1 to that Act);

(e) a condition imposed by the Secretary of State on the
discharge from hospital of a person subject to a restriction
15order under section 42 of the Mental Health Act;

(f) a condition imposed by any of the persons or bodies listed
in sub-paragraph (2) when a person is conditionally
discharged under section 73 of the Mental Health Act;

(g) anything which has the same effect as something within
20any of paragraphs (a) to (f), under another England and
Wales enactment.

(2) The persons or bodies for the purpose of sub-paragraph (1)(f)
are—

(a) the First-tier Tribunal;

(b) 25the Mental Health Review Tribunal for Wales;

(c) the Secretary of State;

(d) the Welsh Ministers.

Part 8 Transitory provision

55 30Until the repeal of section 324 of the Education Act 1996 made by
paragraph 4(1) and (9) of Schedule 1 to the Additional Learning
Needs and Education Tribunal (Wales) Act 2018 (anaw 2) comes
fully into force—

(a) paragraph 9(1)(b) has effect as if there were substituted—

(b) 35if the cared-for person has an individual
development plan or a statement of special
educational needs—

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

(ii) 40in the case of an individual development
plan which is not maintained by a local
authority, the local authority whose area
the cared-for person is in;”,

(b) paragraph 9(5)(b) has effect as if there were substituted—

(b) 45if the cared-for person has an individual
development plan or a statement of special
educational needs—

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

Mental Capacity (Amendment) BillPage 29

(ii) in the case of an individual development
plan which is not maintained by a local
authority, the local authority whose area
the cared-for person is in;”, and

(c) 5paragraph 9(8) has effect as if at the end there were
inserted—

  • ““statement of special educational needs” means a
    statement within the meaning of section 324 of the
    Education Act 1996.””

Section 5(6)

10SCHEDULE 2 Minor and consequential amendments

Part 1 Amendments to the Mental Capacity Act 2005

1 The Mental Capacity Act 2005 is amended as follows.

2 15Omit—

(a) section 16A;

(b) section 21A and the italic heading before it;

(c) Schedules A1 and 1A.

3 In section 35(1) (appointment of independent mental capacity advocates),
20for “available to” to the end substitute available to—

(a) represent and support persons to whom acts or decisions
proposed under sections 37, 38 and 39 relate,

(b) represent and support cared-for persons where paragraph 39
of Schedule AA1 applies, and

(c) 25support appropriate persons where paragraph 40 of
Schedule AA1 applies.”

4 (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
30that person”.

(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) 35in 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
40would be likely to be and the beliefs and values that
would be likely to influence the cared-for person;