Mental Capacity (Amendment) Bill (HL Bill 117)
SCHEDULE 1 continued
Mental Capacity (Amendment) BillPage 20
(4)
This paragraph does not apply if an IMCA has been appointed
under this paragraph and the appointment has not ceased to have
effect.
Part 6 5Monitoring and reporting
38
(1)
The appropriate authority may by regulations make provision for,
and in connection with, requiring one or more bodies prescribed
by the regulations to monitor, and report on, the operation of this
Schedule.
(2)
10The regulations may include provision giving a prescribed body
authority to—
(a)
to visit any place where arrangements authorised under
this Schedule are carried out;
(b) to meet with cared-for persons;
(c)
15to require the production of, and to inspect, records
relating to the care or treatment of persons.
(3) The “appropriate authority” means—
(a)
in relation to the operation of this Schedule in relation to
England, the Secretary of State, and
(b)
20in relation to the operation of this Schedule in relation to
Wales, the Welsh Ministers.
Part 7 Excluded arrangements: mental health
Excluded arrangements
39 25This Schedule does not apply to arrangements if—
(a)
they are mental health arrangements (see paragraphs 40 to
50), or
(b)
they are not in accordance with mental health
requirements (see paragraph 51).
30Kinds of mental health arrangements
40
For the purposes of this Schedule arrangements in relation to a
person (“P”) are “mental health arrangements” if paragraph 41, 42,
43, 44 or 45 applies.
41 This paragraph applies if—
(a) 35P is subject to the hospital treatment regime, and
(b) P is detained in a hospital under that regime.
42 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)
40the arrangements are for enabling medical treatment for
mental disorder.
Mental Capacity (Amendment) BillPage 21
43 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
5England and Wales enactment,
and the arrangements are for enabling medical treatment for
mental disorder.
44 (1) This paragraph applies if the following conditions are met.
(2) Condition 1 is that P is subject to—
(a)
10a 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
15enactment.
(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) 20to 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
2546.
45 (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)
30P 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
35Mental 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;
(e)
40anything 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
for P to be accommodated in a hospital for the purpose of being
45given medical treatment for mental disorder.
Mental Capacity (Amendment) BillPage 22
(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)
Condition 5 is that a donee or deputy has not made a valid
5decision to consent to each matter to which P objects.
(7)
For provision about determining whether P objects see paragraph
46.
46
(1)
In determining whether P objects, regard must be had to all the
circumstances (so far as they are reasonably ascertainable),
10including the following—
(a) P’s behaviour;
(b) P’s wishes and feelings;
(c) P’s views, beliefs and values.
(2)
But regard is to be had to circumstances from the past only so far
15as it is still appropriate to have regard to them.
Mental health arrangements: the hospital treatment regime
47 (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
Table, under the section of the Mental Health Act listed in
20column 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)
P is not subject to the hospital treatment regime during any period
25for 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
England and Wales enactment.
Obligation | 30Mental Health Act section |
---|---|
Application for admission for assessment | Section 2 |
Application for admission for assessment | Section 4 |
Application for admission for treatment | Section 3 |
Order for remand to hospital | 35Section 35 |
Order for remand to hospital | Section 36 |
Hospital order | Section 37 |
Interim hospital order | Section 38 |
Order for detention in hospital | Section 44 |
Mental Capacity (Amendment) BillPage 23
Obligation | Mental Health Act section |
---|---|
Hospital direction | Section 45A |
Transfer direction | Section 47 |
Transfer direction | 5Section 48 |
Hospital order | Section 51 |
Mental health arrangements: other definitions
48 In this Part—
-
“donee” means a donee of a lasting power of attorney
10granted by P; -
“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
15Health Act; -
“learning disability” has the meaning given by section 1(4) of
the Mental Health Act; -
“medical treatment” has the same meaning as in the Mental
Health Act (see section 145(1) and (4)); -
20“mental disorder” is to be read in accordance with paragraph
49.
49
(1)
In “assessment in relation to mental disorder”, “mental disorder”
has the meaning given by section 1(2) of the Mental Health Act.
(2) In “medical treatment for mental disorder”—
(a)
25“mental disorder” has the meaning given by section 1(2) of
the Mental Health Act, 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.
50 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
51
(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;
(b)
a condition or direction imposed or given in respect of a
person by a responsible clinician exercising the power
Mental Capacity (Amendment) BillPage 24
under section 17 of the Mental Health Act (leave of absence
from hospital);
(c)
a condition specified by a responsible clinician in a
community treatment order made in respect of a person
5under 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
person who is the subject of a guardianship order under
section 37 of the Mental Health Act (see section 40 of and
10Part 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
order under section 42 of the Mental Health Act;
(f)
a condition imposed by any of the persons or bodies listed
15in sub-paragraph (2) when a person is conditionally
discharged under section 73 of the Mental Health Act.
(2)
The persons or bodies for the purpose of sub-paragraph (1)(f)
are—
(a) the First-tier Tribunal;
(b) 20the Mental Health Review Tribunal for Wales;
(c) the Secretary of State;
(d) the Welsh Ministers.”
Section 4(6)
SCHEDULE 2 Minor and consequential amendments
25Part 1 Amendments to the Mental Capacity Act 2005
1 The Mental Capacity Act 2005 is amended as follows.
2 Omit—
(a) section 16A;
(b) 30section 21A and the italic heading before it;
(c) Schedules A1 and 1A.
3
In section 35(1) (appointment of independent mental capacity advocates),
for “available to” to the end substitute “available to—
(a)
represent and support persons to whom acts or decisions
35proposed under sections 37, 38 and 39 relate,
(b)
represent and support cared-for persons where paragraph 36
of Schedule AA1 applies, and
(c)
support appropriate persons where paragraph 37 of
Schedule AA1 applies.”
4 40Omit sections 39A to 39E.
5 (1) Section 42 (codes of practice) is amended as follows.
Mental Capacity (Amendment) BillPage 25
(2) In subsection (1) for paragraphs (fa) and (fb) substitute—
“(fa)
for the guidance of persons exercising functions under
Schedule AA1,
(fb)
for the guidance of appropriate persons within paragraph
536(5) of Schedule AA1,”.
(3) In subsection (4) for paragraphs (da) and (db) substitute—
“(da) in the exercise of functions under Schedule AA1,
(db)
as an appropriate person within paragraph 36(5) of Schedule
AA1,”.
6
10In section 50 (applications to the Court of Protection) for subsection (1A)
substitute—
“(1A)
Nor 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
15person (see Part 5 of Schedule AA1).”
7 In section 64 (interpretation), in subsection (1)—
(a) omit the entry relating to authorisation under Schedule A1, and
(b)
in the definition of “local authority”, for “Schedule A1” substitute
“Schedule AA1”.
8 (1) 20Section 65 (rules, regulations etc) is amended as follows.
(2) After subsection (2) insert—
“(2A)
Any 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) 25Omit subsections (4A) to (4C).
Part 2 Amendments to other legislation
Mental Health Act 2007 (c. 12)
9
In Part 1 of Schedule 9 to the Mental Health Act 2007 (amendments to Mental
30Capacity Act 2005) omit paragraphs 2, 5(3), 6, 7(3) and (4), 8, 9, 10(2) and (3)
and 11.