Mental Capacity Bill

House of Commons

Session 2003 - 04
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Part 1 — Persons who lack capacity
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(3)
If R is unable to identify such a person he must, in accordance with guidance
issued by the Secretary of State, nominate a person who—
(a)
is prepared to be consulted by R under this section, but
(b)
has no connection with the project.
(4)
R must provide the person identified under subsection (2), or nominated under
5
subsection (3), with information about the project and ask him—
(a)
for advice as to whether P should take part in the project, and
(b)
what, in his opinion, P’s wishes and feelings about taking part in the
project would be likely to be if P had capacity in relation to the matter.
(5)
If, at any time, the person consulted advises R that in his opinion P’s wishes
10
and feelings would be likely to lead him to decline to take part in the project
(or to wish to withdraw from it) if he had capacity in relation to the matter, R
must ensure—
(a)
if P is not already taking part in the project, that he does not take part
in it;
15
(b)
if P is taking part in the project and no application is made under
subsection (7), that P is withdrawn from the project.
(6)
The fact that a person is the donee of a lasting power of attorney given by P, or
is P’s deputy, does not prevent him from being the person consulted under this
section.
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(7)
If R is satisfied that the research has the potential to benefit P he may, if given
advice of the kind mentioned in subsection (5), apply to the court.
(8)
If the court is satisfied that the research has the potential to benefit P without
imposing on P a burden that is disproportionate to the potential benefit to P, it
may make such declaration or order as it considers appropriate.
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(9)
Subsection (10) applies if R considers that, having regard to the nature of the
research and of the particular circumstances of the case—
(a)
it is necessary to take action for the purposes of the research as a matter
of urgency, but
(b)
it is not reasonably practicable to consult under the previous provisions
30
of this section.
(10)
R may take the action if—
(a)
he has the agreement of a registered medical practitioner who is not
concerned in P’s treatment or care, or
(b)
where it is not reasonably practicable in the time available to obtain that
35
agreement, he acts in accordance with a procedure approved by the
appropriate body at the time when the research project was approved
under section 31.
(11)
But R may not continue to act in reliance on subsection (10) if he has reasonable
grounds for believing that it is no longer necessary to take the action as a matter
40
of urgency.
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Additional safeguards
(1)
This section applies in relation to a person who is taking part in an approved
research project even though he lacks capacity to consent to taking part.
(2)
Nothing may be done to, or in relation to, him in the course of the research—
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Mental Capacity Bill
Part 1 — Persons who lack capacity
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(a)
to which he objects (whether by showing signs of resistance or
otherwise); or
(b)
which would be contrary to an advance decision of his which has effect.
(3)
If he indicates (in any way) that he wishes to be withdrawn from the project he
must be withdrawn without delay.
5
(4)
P must be withdrawn from the project, without delay, if at any time the person
conducting the research has reasonable grounds for believing that one or more
of the requirements set out in section 31(2) to (6) is no longer met in relation to
research being carried out on, or in relation to, P.
Independent consultee service
10
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Appointment of independent consultees
(1)
The appropriate authority must make such arrangements as it considers
reasonable to enable persons (“independent consultees”) to be available to give
advice for the purposes of sections 35, 36 and 37.
(2)
The appropriate authority may make regulations—
15
(a)
as to the appointment of independent consultees;
(b)
as to the functions of independent consultees in relation to sections 35,
36 and 37.
(3)
The regulations may, in particular, provide—
(a)
that a person may act as an independent consultee only in such
20
circumstances, or only subject to such conditions, as may be prescribed;
(b)
for the appointment of a person as an independent consultee to be
subject to approval in accordance with the regulations.
(4)
In making arrangements under subsection (1), the appropriate authority must
have regard to the principle that advice in relation to a proposed act or decision
25
should, so far as practicable, be given by a person who is independent of any
person who will be responsible for the act or decision.
(5)
The arrangements may include provision for payments to be made to, or in relation to,
persons carrying out functions in accordance with the arrangements.
(6)
For the purpose of enabling him to carry out his functions, an independent
30
consultee—
(a)
may interview in private the person in relation to whom he has been
asked for advice, and
(b)
may examine any record of a prescribed kind which the person holding
the record considers may be relevant to the independent consultee’s
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investigation.
(7)
In this section and section 35, “the appropriate authority” means—
(a)
in relation to the provision of the services of independent consultees in
England, the Secretary of State, and
(b)
in relation to the provision of the services of independent consultees in
40
Wales, the National Assembly for Wales.
(8)
“Prescribed” means prescribed by the regulations.

Mental Capacity Bill
Part 1 — Persons who lack capacity
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Duty to seek advice in connection with serious medical treatment
(1)
This section applies if an NHS body—
(a)
is proposing to provide serious medical treatment for a person (“P”)
who lacks capacity to consent to the treatment, and
(b)
is satisfied that there is no person, other than one engaged in providing
5
care or treatment for P in a professional capacity or for remuneration,
whom it would be appropriate to consult about P’s best interests.
(2)
Before the treatment is provided, the NHS body must seek advice from an
independent consultee as to P’s best interests.
(3)
If the treatment needs to be provided as a matter of urgency, it may be
10
provided even though the NHS body has not been able to comply with
subsection (2).
(4)
If the independent consultee gives the NHS body advice about P’s best
interests it must take it into account in treating P.
(5)
“Serious medical treatment” means treatment which involves providing,
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withholding or withdrawing treatment of a kind prescribed by regulations
made by the appropriate authority.
(6)
“NHS body” has such meaning as may be prescribed by regulations made for
the purposes of this section by—
(a)
the Secretary of State, in relation to bodies in England, or
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(b)
the National Assembly for Wales, in relation to bodies in Wales.
36
Duty of NHS body to seek advice before providing accommodation
(1)
This section applies if an NHS body proposes to make arrangements—
(a)
for the provision of accommodation in a hospital or care home for a
person (“P”) who lacks capacity to agree to the arrangements, or
25
(b)
for a change in P’s accommodation to another hospital or care home,

and is satisfied that there is no person, other than one engaged in providing
care or treatment for P in a professional capacity or for remuneration, whom it
would be appropriate for it to consult about P’s best interests.
(2)
Before making the arrangements, the NHS body must seek advice from an
30
independent consultee as to P’s best interests unless it is satisfied that—
(a)
the accommodation is likely to be provided for a continuous period of
less than 28 days, or
(b)
the arrangements need to be made as a matter of urgency.
(3)
If the independent consultee gives the NHS body advice about P’s best
35
interests, the NHS body must take that advice into account in deciding what
arrangements to make for P.
(4)
“Care home” has the meaning given in section 3 of the Care Standards Act 2000
(c.14).
(5)
“Hospital” means—
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(a)
a health service hospital as defined by section 128 of the National
Health Service Act 1977 (c. 49), or
(b)
an independent hospital as defined by section 2 of the Care Standards
Act 2000 (c. 14).

Mental Capacity Bill
Part 1 — Persons who lack capacity
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(6)
“NHS body” has such meaning as may be prescribed by regulations made for
the purposes of this section by—
(a)
the Secretary of State, in relation to bodies in England, or
(b)
the National Assembly for Wales, in relation to bodies in Wales.
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Duty of local authority to seek advice before providing accommodation
5
(1)
This section applies if a local authority propose to make arrangements—
(a)
for the provision of residential accommodation for a person (“P”) who
lacks capacity to agree to the arrangements, or
(b)
for a change in P’s residential accommodation,

and are satisfied that there is no person, other than one engaged in providing
10
care or treatment for P in a professional capacity or for remuneration, whom it
would be appropriate for them to consult about P’s best interests.
(2)
But this section applies only if the accommodation is to be provided in
accordance with section 21 of the National Assistance Act 1948 (c. 29) as the
result of a decision taken by the local authority under section 47 of the National
15
Health Service and Community Care Act 1990 (c. 19).
(3)
Before making the arrangements, the local authority must seek advice from an
independent consultee as to P’s best interests unless they are satisfied that—
(a)
the accommodation is likely to be provided for a continuous period of
less than 8 weeks, or
20
(b)
the arrangements need to be made as a matter of urgency.
(4)
If the independent consultee gives the local authority advice about P’s best
interests, they must take that advice into account in deciding what
arrangements to make for P.
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Exceptions
25
Sections 35(2), 36(2) and 37(3) do not apply if there is—
(a)
a person nominated by P (in whatever manner) as a person to be
consulted in matters affecting his interests,
(b)
a donee of a lasting power of attorney created by P,
(c)
a deputy appointed by the court for P,
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(d)
a donee of an enduring power of attorney (within the meaning of
Schedule 4) created by P.
39
Power to adjust role of independent consultee service
(1)
The appropriate authority may make regulations—
(a)
expanding the role of independent consultees in relation to persons
35
who lack capacity, and
(b)
adjusting the obligation to make arrangements imposed by section 34.
(2)
The regulations may, in particular—
(a)
prescribe circumstances (different to those set out in sections 35, 36 and
37) in which advice must be sought from an independent consultee, in
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respect of a person who lacks capacity, by a person of a prescribed
description, and
(b)
include provision similar to any made by section 35, 36, 37 or 38.

Mental Capacity Bill
Part 1 — Persons who lack capacity
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(3)
“Appropriate authority” has the same meaning as in section 34.
Miscellaneous and supplementary
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Codes of practice
(1)
The Lord Chancellor must prepare and issue one or more codes of practice—
(a)
for the guidance of persons assessing whether a person has capacity in
5
relation to any matter,
(b)
for the guidance of persons acting in connection with the care or
treatment of another person (see section 5),
(c)
for the guidance of donees of lasting powers of attorney,
(d)
for the guidance of deputies appointed by the court,
10
(e)
with respect to the provisions of sections 24 to 26 (advance decisions
and apparent advance decisions), and
(f)
with respect to such other matters concerned with this Act as he thinks
fit.
(2)
The Lord Chancellor may from time to time revise a code.
15
(3)
The Lord Chancellor may delegate the preparation or revision of the whole or
any part of a code so far as he considers expedient.
(4)
It is the duty of a person to have regard to any relevant code if he is acting in
relation to a person who lacks capacity and is doing so in one or more of the
following ways—
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(a)
as the donee of a lasting power of attorney,
(b)
as a deputy appointed by the court,
(c)
in a professional capacity,
(d)
for remuneration.
(5)
If it appears to a court or tribunal conducting any criminal or civil proceedings
25
that—
(a)
a provision of a code, or
(b)
a failure to comply with a code,

is relevant to a question arising in the proceedings, the provision or failure
must be taken into account in deciding the question.
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(6)
A code under subsection (1)(d) may contain separate guidance for deputies
appointed by virtue of paragraph 1(2) of Schedule 5 (functions of deputy
conferred on receiver appointed under the Mental Health Act).
(7)
In this section and in section 41 “code” means a code prepared or revised under
this section.
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41
Codes of practice: procedure
(1)
Before preparing or revising a code, the Lord Chancellor must consult—
(a)
the National Assembly for Wales, and
(b)
such other persons as he considers appropriate.
(2)
The Lord Chancellor may not issue a code unless—
40
(a)
a draft of the code has been laid by him before both Houses of
Parliament, and

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Part 2 — The Court of Protection and the Public Guardian
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(b)
the 40 day period has elapsed without either House resolving not to
approve the draft.
(3)
The Lord Chancellor must arrange for any code that he has issued to be
published in such a way as he considers appropriate for bringing it to the
attention of persons likely to be concerned with its provisions.
5
(4)
“40 day period”, in relation to the draft of a proposed code, means—
(a)
if the draft is laid before one House on a day later than the day on which
it is laid before the other House, the period of 40 days beginning with
the later of the two days;
(b)
in any other case, the period of 40 days beginning with the day on
10
which it is laid before each House.
(5)
In calculating the period of 40 days, no account is to be taken of any period
during which Parliament is dissolved or prorogued or during which both
Houses are adjourned for more than 4 days.
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Ill-treatment or neglect
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(1)
A person is guilty of an offence if he—
(a)
has the care of a person who lacks or whom he reasonably believes to
lack capacity, or is the donee of a lasting power of attorney or a deputy
appointed for a person by the court, and
(b)
ill-treats or wilfully neglects the person concerned.
20
(2)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to imprisonment for a term not exceeding 12
months or a fine not exceeding the statutory maximum or both;
(b)
on conviction on indictment, to imprisonment for a term not exceeding
5 years or a fine or both.
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Part 2
The Court of Protection and the Public Guardian
The Court of Protection
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The Court of Protection
(1)
There is to be a superior court of record known as the Court of Protection.
30
(2)
The court may sit at any place in England and Wales, on any day and at any
time.
(3)
The court is to have a central office and registry at a place appointed by the
Lord Chancellor.
(4)
The Lord Chancellor may designate as additional registries of the court any
35
district registry of the High Court and any county court office.
(5)
The office of the Supreme Court called the Court of Protection ceases to exist.