Mental Capacity (Amendment) Bill (HC Bill 323)

Mental Capacity (Amendment) BillPage 30

(ii) what alternative courses of action are available in
relation to the cared-for person who that appropriate
person represents and supports;”.

5 (1) Section 38 (provision of accommodation by NHS body) is amended as
5follows.

(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,
10and

(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) 15In subsection (3), in the opening words, after “arrangements” insert
“mentioned in subsection (1)”.

(4) Omit subsection (10).

6 (1) Section 39 (provision of accommodation by local authority) is amended as
follows.

(2) 20For 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) 25the 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
30“mentioned in subsection (1)”.

(4) Omit subsection (7).

7 Omit sections 39A to 39E.

8 In section 40 (exceptions)—

(a) in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)”
35substitute “or 39(4) or (5)”;

(b) omit subsection (2).

9 (1) Section 42 (codes of practice) is amended as follows.

(2) In subsection (1) for paragraphs (fa) and (fb) substitute—

(fa) for the guidance of persons exercising functions under
40Schedule AA1,

(fb) for the guidance of appropriate persons within paragraph
39(5) of Schedule AA1,”.

(3) In subsection (4) for paragraphs (da) and (db) substitute—

(da) in the exercise of functions under Schedule AA1,

Mental Capacity (Amendment) BillPage 31

(db) as an appropriate person within paragraph 39(5) of Schedule
AA1,”.

10 In section 50 (applications to the Court of Protection) for subsection (1A)
substitute—

(1A) 5Nor is permission required for an application to the court under
section 21ZA by any independent mental capacity advocate or
appropriate person representing and supporting the cared-for
person (see Part 5 of Schedule AA1).”

11 In section 64 (interpretation), in subsection (1)—

(a) 10omit the entry relating to authorisation under Schedule A1, and

(b) in the definition of “local authority”, for “Schedule A1” substitute
“Schedule AA1”.

12 (1) Section 65 (rules, regulations etc) is amended as follows.

(2) After subsection (2) insert—

(2A) 15Any statutory instrument containing regulations made by the Welsh
Ministers under Schedule AA1 is subject to annulment in pursuance
of a resolution of the National Assembly for Wales.”

(3) Omit subsections (4A) to (4C).

Part 2 20Amendments to other legislation

Mental Health Act 2007 (c. 12)2007 (c. 12)

13 In Part 1 of Schedule 9 to the Mental Health Act 2007 (amendments to Mental
Capacity Act 2005) omit paragraphs 2, 5(3), 6, 7(3) and (4), 8, 9, 10(2) and (3)
and 11.