S.C.A.
Amendment Paper as at
Thursday 21st October 2004
STANDING COMMITTEE A
MENTAL CAPACITY BILL
NOTE
The Amendments have been arranged in accordance with the Programme Order of the Committee [19th October 2004].
Clause 4
Amendment (No. 13) proposed in page 2, to leave out line 36.—(Mr Tim Boswell.)
Question proposed, That the Amendment be made.
Ann Winterton
Mrs Claire Curtis-Thomas
138
Clause 4, page 2, line 36, at end insert—
'(1A) Where the determination concerns or affects the person's personal welfare, he must consider the person's life and health as basic to that welfare.'.
Mr Tim Boswell
14
Clause 4, page 2, line 37, after 'particular', insert 'but not exclusively'.
Mr Tim Boswell
15
Clause 4, page 3, line 1, leave out subsection (4).
Mr Paul Burstow
Paul Holmes
92
Clause 4, page 3, line 1, leave out from 'must' to 'the' and insert 'take steps to ensure that he permits and encourage'.
Mr Paul Burstow
Mr David Heath
Ann Winterton
Mrs Claire Curtis-Thomas
Paul Holmes
110
Clause 4, page 3, line 5, at end insert—
| '(aa) | the person's life and health in so far as they could properly be the object of health care.'. |
Mrs Angela Browning
Mr Paul Burstow
Paul Holmes
136
Clause 4, page 3, line 16, at end insert—
| '(e) | an independent advocate if (a) to (d) do not apply.'. |
Mrs Angela Browning
Mr Paul Burstow
Paul Holmes
135
Clause 4, page 3, line 27, at end add—
'(9) He must exercise non-discrimination in respect of disability or age.'.
Mr Paul Burstow
Paul Holmes
108
Clause 4, page 3, line 27, at end add—
'(9) Where it appears to a relevant authority that—
| (a) | a person, "C", is engaged in caring for another person, "P", and |
| (b) | section 5 may apply to acts in connection with the care or treatment provided by C to P, and |
| (c) | C is not a person to whom section 40(4) applies (those individuals who are under a duty to comply with the Code) |
that authority shall provide C with the codes of practice referred to in section 40(1)(b) (guidance for persons acting in connection with the care or treatment of another person) and take any other steps as it considers reasonably necessary to assist C in complying with section 5(1) (ensuring that P lacks capacity and reasonably believing that the act is in P's best interests).
(10) For the purpose of subsection (9) "relevant authority" means either—
| (a) | a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990, or |
| (b) | a Health Authority, Local Health Board, Special Health Authority, Primary Care Trust or National Health Service trust which is responsible for providing or arranging services under the National Health Act 1997.'. |
Mr Tim Boswell
16
Clause 5, page 3, line 31, leave out paragraph (a).
Mr Paul Burstow
Paul Holmes
93
Clause 5, page 3, line 32, leave out from beginning of line to 'and', and insert 'has capacity to consent to the act and must ascertain P's best interests if P is unable to consent for himself in accordance with section 4'.
Mr Paul Burstow
Paul Holmes
94
Clause 5, page 3, line 34, leave out from 'capacity' to 'and', and insert 'to consent to the act'.
Mr Paul Burstow
Paul Holmes
95
Clause 5, page 3, line 35, at end insert 'and P has sought the involvement of an independent advocate where the matter to be determined is one falling within section 34.'.
Mrs Angela Browning
137
Clause 5, page 3, line 35, at end insert—
| '(iii) | that it will sustain P's life.'. |
Mr Tim Boswell
17
Clause 5, page 3, line 39, at end insert ' but he may be civilly liable to P both for acts done without P's consent, and also for any failure to take reasonable steps to establish whether P lacks capacity in relation to the matter in question or in failing to consult P about his view on the matter'.
Mr Paul Burstow
Mr David Heath
Paul Holmes
Ann Winterton
109
Clause 5, page 3, line 39, at end insert—
'(2A) Nothing in this section permits a person responsible for the care of another person ("P") to withdraw or withhold treatment or sustenance from P if in doing so he has a purpose of hastening or otherwise causing P's death.'.
Mr Paul Burstow
Paul Holmes
97
Clause 5, page 3, line 43, at end add 'or authorise an act which is inconsistent with a decision made by a lasting power of attorney or a deputy appointed by a court of protection.'.
Mr Paul Burstow
Paul Holmes
96
Clause 5, page 3, line 43, at end add—
'(5) Section 5 does not authorise an act in connection with serious medical treatment or a change in P's accommodation to a hospital or care home unless P receives advice from an independent advocate in accordance with section 34.'.
Mr Paul Burstow
Paul Holmes
139
Clause 5, page 3, line 43, at end add—
'(5) Nothing in this section authorises P being deprived of his liberty within the meaning of Article 5(1) of the ECHR.'.
Mr Paul Burstow
Paul Holmes
177
Clause 5, page 3, line 43, at end add—
'(4A) Nothing in this section authorises the admission of P to, or detention in, NHS accommodation under section 36 where the purpose of such admission or detention is for the assessment of, or to provide treatment for, P's mental disorder unless:
| (a) | the NHS body has requested the local social services authority to consider whether an application for P's admission to, or detention in, NHS accommodation under the Mental Health Act 1983 ought to be made and |
| (b) | the local social services authority considers that admission or detention under the Mental Health Act 1983 is not appropriate.'. |
Mr Paul Burstow
Paul Holmes
98
Clause 6, page 4, line 6, after second 'is', insert 'at that time and in relation to the circumstances of that time'.
Mr Tim Boswell
18
Clause 6, page 4, line 12, after 'restricts', insert 'or threatens to restrict'.
Mr Tim Boswell
21
Clause 6, page 4, line 20, after 'act', insert 'or causing any act to be carried out'.
Mr Paul Burstow
Paul Holmes
107
Clause 7, page 4, line 27, leave out 'must' and insert 'should, with consideration to his means'.
Mr Tim Boswell
22
Clause 8, page 4, line 36, at end insert 'and D shall keep appropriate records and receipts to validate any such claim to reimbursement'.
Mr Paul Burstow
Paul Holmes
164
Clause 9, page 5, line 11, after 'capacity', insert 'where the authority of the donee has been limited to either one of (a) or (b).
(1A) There is no presumption that the donee can make decisions on behalf of P or the donees' views should take precedence over others who are consulted in relation to matters that relate to (a) if the donee's authority is limited to (b) and (b) if the donee's authority is limited to (a).'.
Mr Paul Burstow
Paul Holmes
158
Clause 9, page 5, line 15, leave out 'and registered,' and insert 'registered and notified'.
Mr Paul Burstow
200
Clause 9, page 5, line 15, leave out first 'and'.
Mr Paul Burstow
201
Clause 9, page 5, line 15, after 'registered', insert 'and notified'.
Mr Paul Burstow
Paul Holmes
165
Clause 9, page 5, line 23, leave out from 'particular' to end of line and insert 'sections 1 to 4 (the principles and best interests).'.
Mr Tim Boswell
23
Clause 9, page 5, line 25, at end add 'and
| (c) | any conditions or restrictions subsequently imposed by the Court of Protection'. |
Mr Tim Boswell
70
Schedule 1, page 35, line 3, at end insert '(or has had it read to him)'.
Mr Tim Boswell
71
Schedule 1, page 35, line 12, leave out 'and' and insert—
| '(iia) | there is no significant actual or potential conflict between the interests of the donor and those of the donee'. |
Mr Paul Burstow
Paul Holmes
159
Schedule 1, page 39, line 11, after 'power', insert—
'(1) Where an instrument authorising a welfare attorney to make decision is used for the first time, the relevant body has a duty to notify the Office of the Public Guardian that the instrument has been used. The relevant body will be the NHS body, or social services authority, where the decision is being made for care or treatment and it is apparent to that body that in relation to a particular matter on a particular occasion the donor lacks the capacity to make the decision and the donee wishes to make it on behalf of the donor.
(2) Where an instrument authorises the donee to make decisions in relation to the donor's property and affairs and if the donor lacks or the donee reasonably believes that the donor lacks the capacity to make a decision in relation to aspects of their property and affairs or in relation to claims and payments of benefits, the donee has a duty to notify the Office of the Public Guardian and the donor that he intends to use the instrument to the Office of the Public Guardian must include a certificate from a prescribed person to the effect that the donor does not at the time of the notification have the capacity to make all decisions in relation to their property and affairs.
(3) Regulations may specify the manner in which the bodies in paragraph 23(1) and the donee in paragraph 23(2) notify the Office of the Public Guardian, and how it is indicated on the instrument that it is now in use.'.
