Session 2017-19
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Mental Capacity (Amendment) Bill [HL]

LORDS AMENDMENT IN LIEU OF A COMMONS AMENDMENT, AND

LORDS AMENDMENT TO A COMMONS AMENDMENT

[The page and line references are to Bill 303, the bill as first printed for the Commons, unless otherwise

indicated]

Before Clause 1

COMMONS AMENDMENT 1

1

Insert the following new Clause—

“Meaning of deprivation of liberty

(1)    

After section 4 of the Mental Capacity Act 2005 insert—

“4ZA  

Meaning of deprivation of liberty

(1)    

In 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 free 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)    

A 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

(b)    

the same (or materially the same) arrangements would be

put in place for any person receiving that treatment.

 

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(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 provided 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.””

 

LORDS DISAGREEMENT AND AMENDMENT IN LIEU

 

The Lords disagree to Commons Amendment 1 and propose Amendment 1B in lieu—

Before Clause 1

1B

Insert the following new Clause—

“Meaning of deprivation of liberty

(1)    

After section 4 of the Mental Capacity Act 2005 insert—

“4ZA  

Meaning of deprivation of liberty

(1)    

A person is deprived of liberty if the circumstances described in

subsection (2) apply to them.

(2)    

A person is deprived of liberty if they—

(a)    

are subject to confinement in a particular place for more

than a negligible period of time; and

(b)    

have not given valid consent to their confinement; and

(c)    

the arrangements are due to an action of a person or body

responsible to the state.

(3)    

For the purpose of subsection (2)(a), a person is subject to

confinement where they—

(a)    

are prevented from removing themselves permanently

from the place in which they are required to reside, in order

to live where and with whom they choose; and

(b)    

are subject to continuous supervision and control.”

(2)    

In section 64(5) of that Act (interpretation) for the words from “same” to the

end substitute “meaning given by section 4ZA.”

Schedule 1

COMMONS AMENDMENT 25

25

Page 11, line 19, leave out from beginning to end of line 7 on page 12 and insert—

“13(1)  

As 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 under

paragraph 39 to represent and support the cared-for person,

 

 


 
 

3

 
 

(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 under

 

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 and appropriate, having

 

regard to the steps taken under paragraph 12B and the length of time

 

since they were taken, to ensure that the cared-for person and any

 

appropriate person understands the matters mentioned in paragraph

 

12A(2)(a), (c), (d), (f), and (g) as they apply in relation to the cared-for

 

person’s case.”

 

LORDS AGREEMENT AND AMENDMENT TO THE COMMONS AMENDMENT

 

The Lords agree with the Commons in their Amendment 25 and propose Amendment 25A

 

as an amendment thereto—

 

 

25A

 

Line 10, at end insert—

 

  “(1A)  

A record of any decision and justification for not immediately giving a

 

copy of the authorisation record under sub-paragraph (1) must be kept.

 

    (1B)  

If a copy of the authorisation record has not been given to those specified

 

in sub-paragraph (1) within 72 hours, there must be a review of whether

 

the lack of information was appropriate.”

 
 

 


 
 

   
 

LORDS AMENDMENT IN LIEU OF A COMMONS AMENDMENT, AND

 
 

LORDS AMENDMENT TO A COMMONS AMENDMENT

 
   
 

LORDS AMENDMENT IN LIEU OF A COMMONS AMENDMENT, AND

 

27 February 2019

PUBLISHED BY AUTHORITY OF THE HOUSE OF Commons

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Revised 27 February 2019