Mental Capacity (Amendment) Bill [HL]

Commons amendments

[The page and line refer to Bill 303, the Bill as first printed for the Commons]

Before Clause 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.

 

(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.””

Clause 5

2

Page 4, line 25, leave out subsection (9)

 
 

 


 
 

2

Schedule 1

3

Page 5, line 19, leave out “if a person objects to arrangements” and insert “in certain

 

cases”

4

Page 7, line 6, leave out from “Wales,” to end of line 10 and insert “the person

 

registered, or required to be registered, under Chapter 2 of Part 1 of the Regulation

 

and Inspection of Social Care (Wales) Act 2016 (anaw 2) in respect of the provision

 

of a care home service, in the care home;”

5

Page 7, line 13, at end insert—

 

““Education, Health and Care plan” means a plan within the meaning

 

of section 37(2) of the Children and Families Act 2014;”

6

Page 7, leave out line 16

7

Page 7, line 17, at end insert—

 

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

8

Page 7, line 27, at end insert—

 

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

9

Page 7, line 46, leave out “Hospital” and insert “NHS hospital and independent

 

hospital”

10

Page 7, leave out line 47

11

Page 8, line 15, after “6” insert “(1)”

12

Page 8, line 16, leave out “a” and insert “an NHS”

13

Page 8, line 17, at end insert—

 

“(aa)    

if the arrangements are carried out mainly in an independent

 

hospital in England, the responsible local authority determined

 

in accordance with paragraph 8A;

 

(ab)    

if the arrangements are carried out mainly in an independent

 

hospital in Wales, the Local Health Board for the area in which

 

the hospital is situated;”

14

Page 8, line 18, leave out “paragraph (a) does not apply” and insert “none of the

 

paragraphs (a) to (ab) applies”

15

Page 8, line 19, leave out from “mainly” to “that” in line 21 and insert “through—

 

(i)    

the provision of NHS continuing healthcare under

 

arrangements made by a clinical commissioning group,

 

or

 

(ii)    

in Wales, the provision of an equivalent to NHS

 

continuing healthcare under arrangements made by a

 

Local Health Board,”

16

Page 8, line 23, leave out “neither paragraph (a) nor paragraph (b)” and insert

 

“none of paragraphs (a) to (b)”

17

Page 8, line 24, leave out “(see paragraph 9)” and insert “determined in accordance

 

with paragraph 9”

 
 

 


 
 

3

18

Page 8, line 24, at end insert—

 

    “(2)  

If an independent hospital is situated in the areas of two or more Local

 

Health Boards, it is to be regarded for the purposes of sub-paragraph

 

(1)(ab) as situated in whichever of the areas the greater (or greatest) part

 

of the hospital is situated.”

19

Page 8, line 25, after “manager”” insert “, in relation to an NHS hospital,”

20

Page 8, line 41, at end insert—

 

“(ca)    

if the hospital is vested in a Local Health Board, that Board.”

21

Page 8, line 42, leave out from beginning to end of line 10 on page 9

22

Page 9, line 18, at end insert—

 

“8A (1)  

In paragraph 6(1)(aa), “responsible local authority”, in relation to a

 

cared-for person aged 18 or over, means—

 

(a)    

if there is an Education, Health and Care plan for the cared-for

 

person, the local authority responsible for maintaining that plan;

 

(b)    

if paragraph (a) does not apply and the cared-for person has

 

needs for care and support which are being met under Part 1 of

 

the Care Act 2014, the local authority meeting those needs;

 

(c)    

in any other case, the local authority determined in accordance

 

with sub-paragraph (4).

 

      (2)  

If more than one local authority is meeting the needs of a cared-for

 

person 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)  

In paragraph 6(1)(aa), “responsible local authority”, in relation to a

 

cared-for person aged 16 or 17, means—

 

(a)    

if there is an Education, Health and Care plan for the cared-for

 

person, the local authority responsible for maintaining that plan;

 

(b)    

if paragraph (a) does not apply and the cared-for person is being

 

provided with accommodation under section 20 of the Children

 

Act 1989, the local authority providing that accommodation;

 

(c)    

if neither paragraph (a) nor paragraph (b) applies and the cared-

 

for person is subject to a care order under section 31 of the

 

Children Act 1989 or an interim care order under section 38 of

 

that Act, and a local authority in England is responsible under

 

the order for the care of the cared-for person, that local authority;

 

(d)    

if none of paragraphs (a) to (c) applies, the local authority

 

determined in accordance with sub-paragraph (4).

 

      (4)  

In the cases mentioned in sub-paragraphs (1)(c) and (3)(d), the

 

“responsible local authority” is the local authority for the area in which

 

the independent hospital mentioned in paragraph 6(1)(aa) is situated.

 

      (5)  

If an independent hospital is situated in the areas of two or more local

 

authorities, it is to be regarded for the purposes of sub-paragraph (4) as

 

situated in whichever of the areas the greater (or greatest) part of the

 

hospital is situated.”

23

Page 10, leave out lines 43 to 45

 
 

 


 
 

4

24

Page 11, line 18, at end insert—

 

“12A (1)  

The following must publish information about authorisation of

 

arrangements under this Schedule—

 

(a)    

the hospital manager of each NHS hospital;

 

(b)    

each clinical commissioning group;

 

(c)    

each Local Health Board;

 

(d)    

each local authority.

 

      (2)  

The information must include information on the following matters in

 

particular—

 

(a)    

the effect of an authorisation;

 

(b)    

the process for authorising arrangements, including making or

 

carrying out—

 

(i)    

assessments and determinations required under

 

paragraphs 18 and 19;

 

(ii)    

consultation under paragraph 20;

 

(iii)    

a pre-authorisation review (see paragraphs 21 to 23);

 

(c)    

the circumstances in which an independent mental capacity

 

advocate should be appointed under paragraph 39 or 40;

 

(d)    

the role of a person within paragraph 39(5) (an “appropriate

 

person”) in relation to a cared-for person and the effect of there

 

being an appropriate person;

 

(e)    

the circumstances in which a pre-authorisation review is to be

 

carried out by an Approved Mental Capacity Professional under

 

paragraph 21;

 

(f)    

the right to make an application to the court to exercise its

 

jurisdiction under section 21ZA;

 

(g)    

reviews under paragraph 35, including—

 

(i)    

when a review will be carried out;

 

(ii)    

the rights to request a review;

 

(iii)    

the circumstances in which a referral may or will be made

 

to an Approved Mental Capacity Professional.

 

      (3)  

The information must be accessible to, and appropriate to the needs of,

 

cared-for persons and appropriate persons.

 

12B (1)  

Where arrangements are proposed, the responsible body must as soon as

 

practicable take such steps as are practicable to ensure that—

 

(a)    

the cared-for person, and

 

(b)    

any appropriate person in relation to the cared-for person,

 

            

understands the matters mentioned in sub-paragraph (3).

 

      (2)  

If, subsequently, at any time while the arrangements are being proposed

 

the responsible body becomes satisfied under paragraph 39(5) that a

 

person is an appropriate person in relation to the cared-for person, the

 

responsible body must, as soon as practicable, take such steps as are

 

practicable to ensure that the appropriate person understands the

 

matters mentioned in sub-paragraph (3).

 

      (3)  

Those matters are—

 

(a)    

the nature of the arrangements, and

 

(b)    

the matters mentioned in paragraph 12A(2) as they apply in

 

relation to the cared-for person’s case.

 
 

 


 
 

5

 
 

      (4)  

If it is not appropriate to take steps to ensure that the cared-for person or

 

any appropriate person understands a particular matter then, to that

 

extent, the duties in sub-paragraphs (1) and (2) do not apply.

 

      (5)  

In this paragraph “appropriate person”, in relation to a cared-for person,

 

means a person within paragraph 39(5).”

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,

 

(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.”

26

Page 13, line 48, at end insert—

 

  “(1A)  

The person who makes the determination need not be the same as the

 

person who carries out the assessment.”

27

Page 14, leave out lines 1 and 2 and insert—

 

    “(2)  

The appropriate authority may by regulations make provision for

 

requirements which must be met by a person—

 

(a)    

making a determination, or

 

(b)    

carrying out an assessment,

 

            

under this paragraph.

 

    (2A)  

Regulations under sub-paragraph (2) may make different provision—

 

(a)    

for determinations and assessments, and

 

(b)    

for determinations and assessments required under sub-

 

paragraph (1)(a) and determinations and assessments required

 

under sub-paragraph (1)(b).”

28

Page 14, line 6, leave out “prescribed connection “and insert “connection, of a kind

 

prescribed by regulations,”

29

Page 14, line 14, after “the” insert “determination or”

30

Page 14, line 16, after “the” insert “determination or”

31

Page 14, line 18, leave out “The” and insert “An”

32

Page 14, line 34, leave out “made on an assessment” and insert “by a person, who

 

meets requirements prescribed by regulations made by the appropriate authority,

 

made on an assessment by that person”

33

Page 14, leave out lines 40 to 46

 
 

 


 
Back to StartNext
 

13 February 2019