Mental Capacity (Amendment) Bill (HL Bill 117)

Part 2 Authorisation of arrangements

The authorisation conditions

11 The authorisation conditions are that—

(a) 5the cared-for person lacks the capacity to consent to the
arrangements,

(b) the cared-for person is of unsound mind, and

(c) the arrangements are necessary and proportionate.

Authorisation

12 10The responsible body may authorise arrangements, other than
care home arrangements, if—

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

(b) the responsible body is satisfied, on the basis of the
15determinations required by paragraphs 15 and 16, that the
authorisation conditions are met,

(c) the responsible body has carried out consultation under
paragraph 17,

(d) the responsible body is satisfied that any requirement
20under paragraph 36 or 37, that arises in relation to the
arrangements before they are authorised, has been
complied with,

(e) a pre-authorisation review has been carried out in
accordance with paragraphs 18 to 20,

(f) 25the person carrying out the review has determined—

(i) under paragraph 19, that the authorisation
conditions are met, or

(ii) under paragraph 20, that it is reasonable for the
responsible body to conclude that those conditions
30are met, and

(g) a draft authorisation record has been prepared in
accordance with paragraph 21.

13 The responsible body may authorise care home arrangements if—

(a) the care home manager has provided the responsible body
35with a statement in accordance with paragraph 14,

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

(i) that this Schedule applies to the arrangements,

(ii) that the authorisation conditions are met, and

(iii) 40that the care home manager has carried out
consultation under paragraph 17,

(c) the responsible body is satisfied that any requirement
under paragraph 36 or 37, that arises in relation to the
arrangements before they are authorised, has been
45complied with,

(d) a pre-authorisation review has been carried out in
accordance with paragraphs 18 to 20, and

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

(i) under paragraph 19, that the authorisation
5conditions are met, or

(ii) under paragraph 20, that it is reasonable for the
responsible body to conclude that those conditions
are met.

14 (1) A statement for the purposes of paragraph 13(a) is a statement by
10the 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) 15that the determinations required by paragraphs 15 and 16
have been made,

(e) that the care home manager has carried out consultation
under paragraph 17,

(f) that any requirement under paragraph 34, that arises in
20relation to the arrangements before they are authorised,
has been complied with, and

(g) that the care home manager—

(i) is satisfied that paragraph 18(2)(a) or (b) applies,

(ii) is satisfied that neither applies, or

(iii) 25is not satisfied that a decision can be made as to
whether either applies.

(2) The statement—

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

(b) 30must be accompanied by—

(i) a record of the assessments on which the
determinations required by paragraph 15 were
made,

(ii) evidence of the consultation mentioned in sub-
35paragraph (1)(e), and

(iii) a draft authorisation record prepared in
accordance with paragraph 21.

Determinations made on capacity and medical assessments

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

(a) 40a determination made on an assessment in respect of the
cared-for person, that the person lacks the capacity to
consent to the arrangements, and

(b) a determination made on an assessment in respect of the
cared-for person, that the person is of unsound mind.

(2) 45The assessment may be one carried out for an earlier authorisation
or for any other purpose, provided that it appears—

(a) to the care home manager, if the arrangements are care
home arrangements, or

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

that it is reasonable to rely on the assessment.

(3) The care home manager or responsible body must have regard
to—

(a) 5the 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.

10Determination that arrangements are necessary and proportionate

16 (1) The determination required by this paragraph is a determination
that the arrangements are necessary and proportionate.

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

(a) to the care home manager, if the arrangements are care
15home arrangements, or

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

to have appropriate experience and knowledge to make the
determination.

Consultation

17 (1) 20Consultation under this paragraph must be carried out—

(a) if the arrangements are care home arrangements, by the
care home manager;

(b) otherwise, by the responsible body.

(2) The following must be consulted—

(a) 25anyone named by the cared-for person as someone to be
consulted about arrangements of the kind in question,

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

(c) any donee of a lasting power of attorney or an enduring
30power of attorney (within the meaning of Schedule 4)
granted by the cared-for person,

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

(e) any appropriate person and any independent mental
35capacity advocate concerned (see Part 5).

(3) The 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
40falling within sub-paragraph (2) the duty to consult that person
does not apply.

Pre-authorisation review

18 (1) A pre-authorisation review for the purposes of paragraph 12(e) or
13(d) must be by a person who is not involved—

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

(b) 5in providing any treatment to the cared-for person.

(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
10that the cared-for person does not wish to reside in that
place, or

(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
15wish to receive care or treatment at that place.

19 (1) If the review is by an Approved Mental Capacity Professional
(whether or not paragraph 18(2) applies), the Approved Mental
Capacity Professional must—

(a) review the information on which the responsible body
20relies, and

(b) determine whether the authorisation conditions are met.

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

(a) meet with the cared-for person, if it appears to the
25Approved Mental Capacity Professional to be appropriate
and practicable to do so, and

(b) consult any person listed in paragraph 17(2), or take any
other action, so far as it appears appropriate to the
Approved Mental Capacity Professional to do so in order
30to make the determination.

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

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

(b) 35determine whether it is reasonable for the responsible
body to conclude that the authorisation conditions are met.

Authorisation record

21 (1) An authorisation record is a record relating to a cared-for person,
specifying all arrangements authorised for the time being for that
40person, and specifying in relation to any arrangements—

(a) the time from which the authorisation has effect, and when
it is to cease to have effect under paragraph 23(1), (2) or (3),

(b) the programme for reviewing the authorisation,

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

(d) 45anything else this Schedule requires to be specified.

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

(3) When the responsible body authorises arrangements the draft
authorisation record required by paragraph 12(g) or 14(2)(b)(iii)—

(a) becomes the authorisation record, and

(b) supersedes any earlier authorisation record.

(4) 5The responsible body must revise the authorisation record if there
is 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

10Time for which authorisation has effect

22 (1) An 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
1528 days beginning with the day on which the responsible body
gives the authorisation.

23 (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) 20at the end of any shorter period specified by the
responsible body at the time it gives the authorisation.

(2) If the authorisation is renewed in accordance with paragraph 26,
it ceases to have effect at the end of the renewal period.

(3) If the responsible body at any time determines that an
25authorisation is to cease to have effect from any earlier day, it
ceases to have effect from that day.

(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) 30An authorisation ceases to have effect in relation to arrangements
so far as at any time they are not in accordance with mental health
requirements.

Notification that arrangements have ceased to have effect

24 If an authorisation of arrangements ceases to have effect (in whole
35or in part) under paragraph 23(4) or (5), the responsible body must
take 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

25 (1) This paragraph applies if an authorisation ceases to have effect (in
40whole or in part) under paragraph 23(4) or (5).

(2) For 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) 5the arrangements are no longer authorised,

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

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

Renewal

26 (1) 10The responsible body may, on one or more occasions, renew an
authorisation in accordance with paragraph 27 or 28 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) 15An authorisation which has ceased to have effect cannot be
renewed.

27 In relation to arrangements other than care home arrangements,
the responsible body may renew an authorisation if—

(a) the responsible body is satisfied—

(i) 20that the authorisation conditions continue to be
met, and

(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
25those conditions are met, and

(b) the responsible body has carried out consultation under
paragraph 17.

28 In relation to care home arrangements, the responsible body may
renew an authorisation if—

(a) 30the care home manager has provided the responsible body
with a statement in accordance with paragraph 29,

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

(i) that the authorisation conditions continue to be
35met,

(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

(iii) 40that the care home manager has carried out
consultation under paragraph 17.

29 (1) A statement for the purposes of paragraph 28(a) is a statement by
the care home manager—

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

(b) 45that 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

(c) that the care home manager has carried out consultation
under paragraph 17.

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

5Variation

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

(a) that consultation under paragraph 17 has been carried out,
and

(b) 10that it is reasonable to make the variation.

Reviews

31 (1) In this paragraph “the reviewer” means—

(a) the care home manager, in relation to care home
arrangements;

(b) 15the responsible body, in any other case.

(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) if the authorisation is varied under paragraph 30;

(b) 20if 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) if the cared-for person becomes subject to mental health
25requirements;

(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
circumstances.

(4) 30This 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) the reviewer becomes aware that the cared-for person does
35not wish to reside in, or to receive care or treatment at, that
place, and

(c) the pre-authorisation review under paragraph 18 was not
by an Approved Mental Capacity Professional.

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

(a) 40the 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) circumstances from the past are to be considered only so
45far 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
must refer the authorisation to an Approved Mental Capacity
5Professional for a determination as to whether the authorisation
conditions are met

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

(a) review the authorisation,

(b) 10meet 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 person listed in paragraph 17(2), or take any
other action, so far as it appears appropriate to the
15Approved Mental Capacity Professional to do so in order
to make the determination.

Part 4 Approved Mental Capacity Professionals

32 Each local authority must make arrangements—

(a) 20for persons to be approved as Approved Mental Capacity
Professionals, and

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

33 (1) The appropriate authority may by regulations—

(a) 25prescribe the criteria which must be met for a person to be
eligible 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
30as an Approved Mental Capacity Professional;

(c) provide 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
35relating to qualifications, training or experience.

(3) If 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
40approval;

(b) give 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
45Work England to obtain the Secretary of State’s approval
before 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) 5The “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
10by, or a person approved by, a local authority whose area
is in Wales.

Part 5 notification by care homes and appointment of IMCA

Notification in relation to care home arrangements

34 15If a care home manager is proposing or carrying out care home
arrangements (whether or not those arrangements are
authorised), the care home manager must notify the responsible
body at any time when the manager is of the opinion—

(a) that paragraph 36(2) or (3) applies (person should be
20appointed to support and represent the cared-for person),

(b) that there is a person who meets the requirements in
paragraph 36(5)(a) to (c) (an appropriate person), or

(c) that paragraph 37(2) or (3) applies (person should be
appointed to support an appropriate person).

25Appointment of Independent Mental Capacity Advocate

35 (1) Paragraphs 36 and 37 apply to the responsible body at all times
while arrangements—

(a) are authorised, or

(b) are being proposed or carried out, and are not yet
30authorised.

(2) But if the arrangements are care home arrangements, those
paragraphs apply only if the care home manager has given the
relevant notification under paragraph 34.

(3) In those paragraphs—

• 35“IMCA” means an independent mental capacity advocate;

• “relevant person” means—

  (a)

  the care home manager, in relation to care home
  arrangements;

  (b)

  the responsible body, in any other case.

36 (1) 40The responsible body must take all reasonable steps to appoint an
IMCA 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) has capacity to consent to being represented and
supported by an IMCA, and

(b) makes a request to the relevant person for an IMCA to be
5appointed.

(3) An IMCA should be appointed if—

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

(b) the relevant person is satisfied that being represented and
10supported 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.

(5) 15This paragraph does not apply if the relevant person is satisfied
that there is a person (an “appropriate person”) who—

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

(b) consents to representing and supporting the cared-for
20person, and

(c) is not engaged in providing care or treatment for the cared-
for 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
25represented and supported by that person, the cared-for
person does consent, or

(b) where the cared-for person lacks capacity to consent to
being represented and supported by that person, the
relevant person is satisfied that being represented and
30supported by that person would be in the cared-for
person’s best interests.

37 (1) If 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) 35sub-paragraph (2) or (3) provides that an IMCA should be
appointed, and

(b) sub-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,
40and

(b) makes a request to the relevant person for an IMCA to be
appointed.

(3) An IMCA should be appointed if—

(a) the appropriate person lacks capacity to consent to being
45supported by an IMCA, and

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