Vote Bundle Text (941026-06)

Amendments proposed to the Mental Capacity Bill - continued	House of Commons

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Mr David Lammy
Ms Rosie Winterton

131

Schedule 7, page 78, line 21, after 'VII', insert 'of this Act'.

Mr David Lammy
Ms Rosie Winterton

132

Schedule 7, page 78, line 26, after '25,' insert '32,'.

Mr David Lammy
Ms Rosie Winterton

133

Schedule 7, page 78, line 26, leave out '37,'.

Mr Tim Boswell

Clause 64, page 33, line 18, at end insert ', but may not come into force until after approval of both Houses of Parliament of a draft Code of Practice under section 40 of this Act'.

Mr Tim Boswell

Clause 64, page 33, line 21, leave out subsection (3).

NEW CLAUSES

Advance statements on treatment: general

Mr Paul Burstow
Paul Holmes

NC1

To move the following Clause:—

(1) In this section and sections 25 and 26 "advance statement" means either

(a) a decision made by a person ("P"), after he has reached 18 and when he has capacity to do so, that if—

(i) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and

(ii) at that time he lacks capacity to consent to the carrying out or continuation of the treatment, the specified treatment is not to be carried out or continued, or

(b) an advance request made by a person ("P"), after he has reached age 18 and when he has capacity to do so, specifying what treatment he would wish to receive should he become incapable of participating in decisions about his treatment.

(2) For the purposes of subsection (1)(a)(i) and (1)(a)(b), a decision may be regarded as specifying a treatment or circumstances even though expressed in layman's terms.

(3) An advance request may specify that P wishes all reasonably practical steps to be taken to maintain his life, including initiation or continuation of artificial nutrition and hydration.

(4) P may withdraw or alter an advance statement at any time when he has capacity to do so.'.

The Court of Protection, Supplementary Power

Mr Paul Burstow
Paul Holmes

NC2

To move the following Clause:—

'(1) Under the Court of Protection's power to set aside contracts or to vary their terms, application may be made to the Court to challenge the validity of a contract entered into by P, notwithstanding section 7,

(a) when a person lacks capacity to understand a contract when making it and/or their capacity to meet that agreement,

(b) where a seller overcharges or an incapacitated person undersells.

(2) For the purposes of contract law, the burden of proof should fall to the provider of services/goods to demonstrate that P understood or had capacity to understand a contract, where the issue of P's best interest is challenged.'.

Advocacy service

Mr Paul Burstow
Paul Holmes

NC3

To move the following Clause:—

'(1) The appropriate authority must make arrangements to secure advocacy in decisions relating to—

(a) making and reviewing of care programmes

(b) decisions of residence.

(2) the appropriate authority must fully note decisions made in these matters and the reasoning behind them.'.

Duty of care of a local authority

Mr Paul Burstow
Paul Holmes

NC4

To move the following Clause:—

'Where a local authority have reasonable cause to suspect that an adult who lacks capacity who lives, or is found, in their area is suffering, or likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the adult's welfare.'.

Notification of the use of the LPA

Mr Paul Burstow
Paul Holmes

NC5

To move the following Clause:—

'(1) Where the donor objects to the use of an LPA on the grounds that he considers the application is premature because he has the capacity to make the decision, if this ground is established to the satisfaction of the court it must direct the Public Guardian not to seal the notification.

(2) The court must direct the Public Guardian to cancel the notification on being satisfied that the donor has regained mental capacity.'.

Duties of the responsible clinician

Mrs Angela Browning

NC6

To move the following Clause:—

'(1) The responsible clinician may be any registered doctor responsible for P's assessment and medical treatment at the relevant time.

(2) If P's responsible clinician considers that the conditions specified in section E (2) to (7) are met in relation to a medical treatment to which section D applies, he must notify—

(a) the Secretary of State, and

(b) any other person of a description specified in regulations made by the Secretary of State.'.

Cases where informal treatment for mental disorder not available

Mrs Angela Browning

NC7

To move the following Clause:—

'(1) This section applies where it appears to the responsible clinician that the conditions specified in subsection (3) are met in P's case.

(2) The responsible clinician must ensure that, for so long as those conditions appear to him to be met, treatment for mental disorder is not given to P, except in a case of urgency, unless it is authorised by or under Part II of the Mental Health Act 1983.

(3) The conditions are that—

(a) P is not capable of consenting to the treatment by virtue of a lack of capacity within the meaning of section 2 and there is no reasonable prospect that he will become capable of doing so, and

(l) he either—

(i) would resist the treatment if given, or

(ii) is at substantial risk of committing suicide or causing serious harm to other persons.

(4) For the purposes of this section, it is to be assumed that if P has at any time indicated that he does not want to receive treatment for mental disorder or particular treatment, he would resist such treatment.'.

Duty to determine whether P is to be assessed for safeguards

Mrs Angela Browning

NC8

To move the following Clause:—

(1) The Secretary of State must, if requested to do so by any person, determine whether the conditions specified in section E (2) to (7) appear to be met in P's case.

(2) If the Secretary of State determines that those conditions appear to be so met, he must, as soon as practicable after making the determination—

(a) appoint a responsible clinician to act in respect of P for the purposes of this Part, and

(b) secure that P is assessed under section E by the responsible clinician.'.

Duty of hospital managers to request assessment of existing patient

Mrs Angela Browning

NC9

To move the following Clause:—

'(1) Where—

(a) treatment for mental disorder is being provided to P at a hospital otherwise than in accordance with Part II of the Mental Health Act 1983, and

(b) it appears to the responsible clinician that the conditions specified in section E (2) to (7) appear to be met in P's case,

the managers of the hospital must request the Secretary of State to determine under section C(1) whether those conditions appear to be met.

(2) Where P is liable to assessment for admission or treatment under Part II of the Mental Health Act 1983 and it appears to the responsible clinician that the conditions specified in section E(2) to (7) appear to be met in P's case, the managers of the hospital to which P has been admitted must request the Secretary of State to determine under section C(1) whether those conditions appear to be met.'.

Assessment for safeguards

Mrs Angela Browning

NC10

To move the following Clause:—

'(1) The assessment of P under this section is for the purpose of determining whether the conditions specified in subsection (2) to (7) are met in P's case.

(2) The first condition is that P is aged 16 or over.

(3) The second condition is that P is suffering from a mental disorder within the meaning of section 1(1) of the Mental Health Act 1983.

(4) The third condition is that that mental disorder is of such a nature of degree as to warrant the provision of medical treatment to P.

(5) The fourth condition is that P is a resident patient at a hospital for the provision of treatment to him.

(6) The fifth condition is P is not capable of consenting to the treatment.

(7) the sixth condition is that the treatment can lawfully be provided to P without P being subject to the provisions of Part II of the Mental Health Act 1983.

(8) If the responsible clinician determines that any of those conditions is not met in P's case, P ceases to be a qualifying patient.'.

Assessment: supplementary

Mrs Angela Browning

NC11

To move the following Clause:—

'(1) The Secretary of State must secure that the assessment is made not later than the end of 28 days beginning with the day on which a responsible clinician is appointed for P.

(2) If because of exceptional circumstances it is impracticable to make the assessment within the 28 days, the Secretary of State must secure that it is made as soon as is practicable.

(3) The responsible clinician must make a record of—

(a) his determination under section E and reasons for it, and

(b) any exceptional circumstances to which subsection (2) applies.'.