Safeguards

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

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

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

“(5) D 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) 10After section 4B insert—

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

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

(2) 15D does not incur any liability in relation to the act that would not have
been incurred if the cared-for person—

(a) had 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
20damage, or a person’s criminal liability, resulting from that person’s
negligence in doing the act.

(4) Paragraph 25 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) 5Before Schedule 1 insert the Schedule AA1 set out in Schedule 1 to this Act.

2 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
10act

(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
15treatment 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) 20Condition 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) 25subsection (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,

(b) 30a responsible body is carrying out functions under Schedule
AA1 with a view to determining whether to authorise
arrangements which would give rise to a deprivation of P’s
liberty, or

(c) a care home manager has notified, or taken reasonable steps to
35notify, the responsible body under paragraph 34 of Schedule
AA1 in respect of any such arrangements.

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

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

(b) 40whether the arrangements mentioned in paragraph (b) or (c)
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
subsection (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) 5to make an application for P to be detained under Part 2
of the Mental Health Act,

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

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

3 10Powers 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) This section applies where an authorisation under Schedule AA1—

(a) 15has effect, or

(b) is to have effect from a date specified under paragraph 22 of that
Schedule.

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

(a) whether Schedule AA1 applies to the arrangements, or whether
20the 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
make an order—

(a) 25varying 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
out the arrangements before the variation or termination.

(5) 30An order under subsection (4) may, in particular, exclude a person from
liability.

(6) “Authorisation conditions” has the meaning given by paragraph 11 of
Schedule AA1.”

General

4 35Consequential 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) may 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) 5Regulations 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
10of a resolution of either House of Parliament.

(6) Schedule 2 makes minor and consequential amendments.

5 Extent, commencement and short title

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

(2) This section, and section 4 except subsection (6), come into force on the day this
15Act 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
20by regulations made by statutory instrument.

(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
25purposes 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 2018.

SCHEDULES

Section 1(4)

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

    “SCHEDULE AA1

 5Section 4A(5)

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

Part 1 Introductory and interpretation

10Contents of this Schedule

1 In this Schedule—

• Part 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
  15authorise arrangements

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

• Part 4 is about Approved Mental Capacity Professionals
  (involved under Part 2 if a person objects to arrangements)

• 20Part 5 is about appointing persons to give representation and
  support in connection with arrangements

• Part 6 gives power to provide for monitoring and reporting

• Part 7 excludes—

  (a)

  mental health arrangements, and

  (b)

  25arrangements that are not in accordance with mental
  health requirements.

Arrangements this Schedule applies to

2 (1) This Schedule applies to arrangements—

(a) for enabling the care or treatment of a person (the “cared-
30for person”) described in sub-paragraph (2),

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

(c) that are not excluded by Part 7.

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

(a) is aged 18 or over,

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

(c) is of unsound mind.

(3) 5The 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) for the means and manner of transport for the cared-for
10person 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
they are carried out are to whatever is proposed in the
15arrangements.

(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.

Definitions

3 20In 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
  Schedule;

• 25“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
  read accordingly;

• 30“authorisation conditions” has the meaning given by
  paragraph 11;

• “authorisation record” has the meaning given by paragraph
  21;

• “care home” means—

  (a)

  35a 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
  Inspection of Social Care (Wales) Act 2016 (anaw 2) is
  40provided wholly or mainly to persons aged 18 or
  over;

• “care home arrangements” means arrangements carried out
  wholly or partly in a care home;

• “care home manager”, in relation to a care home or
  45arrangements carried out wholly or partly in a care home,
  means—

  (a)

  in relation to England, the person registered, or
  required to be registered, under Chapter 2 of Part 1 of

  Mental Capacity (Amendment) BillPage 7

  the Health and Social Care Act 2008 in respect of the
  provision of residential accommodation, together
  with nursing or personal care, in the care home, and

  (b)

  in relation to Wales, the person registered, or required
  5to be registered, under Part 2 of the Care Standards
  Act 2000 in respect of the care home;

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

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

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

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

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

• “mental health arrangements” has the meaning given by
  15paragraph 40;

• “mental health requirements” has the meaning given by
  paragraph 51;

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

• “specified”, except in paragraph 51, means specified in an
  20authorisation record;

• “unsound mind” has the same meaning as in Article 5(1)(e) of
  the Human Rights Convention.

Local authority

4 (1) “Local authority” means—

(a) 25in 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) 30the 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
35Temple and the Middle Temple.

Hospital

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

(2) “NHS hospital” means—

(a) a health service hospital as defined by section 275 of the
40National Health Service Act 2006 or section 206 of the
National Health Service (Wales) Act 2006, or

(b) a 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
not an NHS hospital, and

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

Responsible body

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

(a) if the arrangements are carried out mainly in a hospital, the
10hospital manager;

(b) if paragraph (a) does not apply and the arrangements are
carried out mainly through the provision of NHS
continuing health care under arrangements made by a
clinical commissioning group or Local Health Board, that
15clinical commissioning group or Local Health Board;

(c) if neither paragraph (a) nor paragraph (b) applies, the
responsible local authority (see paragraph 10).

7 (1) “Hospital manager” means—

(a) if the hospital—

(i) 20is 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) consists of any accommodation provided by a local
25authority 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
responsible for the administration of the hospital;

(b) 30in 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
foundation trust, that trust;

(d) 35if 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
regulated activities (within the meaning of that
40Part) 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
Standards Act 2000 in respect of the hospital;

(e) if the hospital is an independent hospital and there is no
45person 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
State, or

(ii) in relation to a hospital in Wales, the Welsh
50Ministers.

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

(a) the Secretary of State,

(b) the Welsh Ministers, or

(c) the Secretary of State and the Welsh Ministers acting
5jointly.

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

9 In this Schedule “Local Health Board” means a Local Health Board
10established under section 11 of the National Health Service
(Wales) Act 2006.

10 (1) In paragraph 6(c), “responsible local authority” means—

(a) if the cared-for person has needs for care and support
which are being met under Part 1 of the Care Act 2014 or
15under Part 4 of the Social Services and Well-being (Wales)
Act 2014, the local authority meeting those needs,

(b) in any other case, the local authority determined in
accordance with sub-paragraph (5).

(2) If more than one local authority is meeting the needs of a cared-for
20person 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) If more than one local authority is meeting the needs for care and
25support of a cared-for person under the Social Services and Well-
being (Wales) 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 Act.

(4) If the cared-for person is having needs for care and support met
30under both of the Acts mentioned in sub-paragraph (1)(a), the
responsible local authority is the local authority determined in
accordance with sub-paragraph (5).

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

(a) 35if 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) if the arrangements provide for the cared-for person to
reside in more than one place, the local authority for the
40area 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.

(6) If a building is situated in the areas of two or more local
authorities, it is to be regarded for the purposes of sub-paragraph
45(5) as situated in whichever of the areas the greater (or greatest)
part of the building is situated.