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Right to independent advocacy in connection with decisions on serious medical treatment
Mr Tom Clarke
NC23
To move the following Clause:—
'(1) The specified circumstances in which independent advocacy must be made available shall include consideration by an NHS body of providing, withholding or withdrawing serious medical treatment for a person "P" where it appears to the NHS body that ("P") may lack capacity in relation to that treatment capacity to seek the treatment on his own behalf or to consent to it.
(2) The NHS body must seek and take into account representations from an independent advocate.
(3) Nothing in this section shall prevent the giving of urgently necessary medical treatment; but where such treatment is ongoing it shall be reviewed as soon as possible, taking into account any representations by the independent advocate.
(4) "Serious medical treatment" means treatment of a kind prescribed by regulations made by the appropriate authority.
(5) Regulations may specify treatments in which the advocate's representations are to be forwarded to the court for decision on the treatment issues; treatments in which the advocate's representations are to be forwarded to a doctor invited to give a second medical opinion; and treatments where the advocate's representations are to be considered by the NHS body without further consultation.
(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. |
(7) "Prescribed" means prescribed by the regulations.
(8) The provision of assistance may result in the proposed decision or action not taking place under the provisions of this Act.
(9) Nothing in this section obliges person P to accept the assistance offered by an independent advocate.'.
Treatments to which special safeguards apply
Mr Tom Clarke
NC24
To move the following Clause:—
'(1) D is not authorised to authorise or accept treatment on behalf of P unless—
| (a) | it has been approved by the court; or |
| (b) | consent to the treatment or procedure has been given within the scope of his authority by the donee of a lasting power of attorney granted by P or by a deputy appointed for P by the court. |
(2) The treatments referred to in subsection (1) are as follows:
| (a) | any treatment or procedure intended or reasonably likely to render the person concerned permanently infertile except where it is for disease of the reproductive organs or for alleviating existing detrimental effects of menstruation; |
| (b) | any treatment or procedure to facilitate the donation of non-generative tissue or bone marrow; or |
| (c) | electroconvulsive therapy. |
(3) Subsection (1) also applies when—
| (a) | there is a serious difference of clinical opinion as to the appropriate treatment, or |
| (b) | there is a serious difference of view between the responsible clinician and P, or P's representatives as to the appropriate treatment, and |
| (c) | there is a significant probability that the adverse effects of treatment may outweigh the benefits, or |
| (d) | the provision of medical treatment has irreversible physical or psychological consequences, or |
| (e) | the provision of medical treatment entails significant physical hazard, or |
| (f) | treatment is outside recognised guidelines, |
and such other treatments or procedures (including treatments or procedures to facilitate the donation of tissue not within paragraph (b) above) as may be prescribed for the purpose of this sub-section by regulations made by the Secretary of State.
(4) Section 5 does not authorise any treatment to which subsection (5) applies unless—
| (a) | a registered medical practitioner other than the one who will be responsible for carrying it out and who has been appointed for the purposes of this subsection by the Secretary of State, has certified in writing— |
| (i) | that P lacks capacity to consent to the treatment or procedure; and |
| (ii) | his opinion is that it is in the best interests of P for the treatment to be carried out; or |
| (iii) | consent to the treatment or procedure has been given within the scope of his authority by the donee of a lasting power of attorney granted by P or by a deputy appointed for P by the court. |
(5) Before giving a certificate under subsection (4)(a) above, the registered medical practitioner concerned must consult:
| (a) | P (unless not reasonably practicable to do so) |
| (b) | a registered nurse who has been professionally concerned with P's medical treatment, and |
| (c) | any donee of a lasting power of attorney granted by P or deputy appointed for P by the court or any other person (such as an advocate) known to represent P or engaged in caring for P. |
(6) The treatments referred to in subsection (2) are as follows—
| (a) | any form of treatment for the time being specified under section 58(1)(a) of the Mental Health Act 1983; |
| (b) | the administration to P by any means of medicine for mental disorder; |
| (d) | any treatment or procedure intended or reasonably likely to render P permanently infertile where it is for relieving existing detrimental effects of menstruation; |
| (e) | such other treatments or procedures as may be prescribed for the purpose of this subsection by regulations made by the Secretary of State. |
(7) Nothing in subsections (1) to (5) stops a person—
| (a) | providing life-sustaining treatment, or |
| (b) | doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P's condition, |
while a decision as respects any relevant issue is sought from the court, or while the necessary certificate or consent is sought.'.
Duty on public body to assess capacity
Mr Tom Clarke
NC25
To move the following Clause:—
'(1) Where it appears to the relevant authority that a person ("P)" may lack capacity in relation to matters connected to—
| (a) | the assessment of P's needs for services which may be provided or arranged by the relevant authority ("assessment of needs") or |
| (b) | the provision of services to P which may be provided or arranged by the relevant authority ("service provision decision") |
no part of this Act will authorise a person to do an act connected with the assessment of needs or service provision decision unless the steps set out in subsection (3) are followed.
(2) For the purpose of subsection (1) and (3) a "relevant authority" means either—
| (a) | a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990, |
| (b) | a local housing authority within the meaning of the Housing Act 1985, or |
| (c) | a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust. |
(3) The relevant authority must:—
| (a) | make arrangements for P's capacity, in relation to the matter in question, to be assessed; |
| (b) | notify P of the help available from, and assist P (if P so requires in contacting, an independent advocate under the arrangements under section 34, (such help may include assisting P in communicating his views); |
| (c) | consider whether P requires any additional assistance in communicating his views (whether by talking, using sign language or other means); and |
| (d) | where P has been assessed to lack capacity in relation to the matter in question, to make such enquiries as are necessary to be satisfied that the matter does not fall within the scope of the authority of— |
| (i) | a donee of a Lasting Power of Attorney granted by P, |
| (ii) | a deputy appointed by the court, or |
| (iii) | an advance decision to refuse treatment (where treatment is being considered). |
(4) In carrying out an assessment under (3)(a) the relevant authority must take into account the views of:
| (a) | P with or without the assistance of an independent advocate providing support in accordance with subsection (3)(b), and |
| (b) | anyone named by P as someone to be consulted on the matter in question or on matters of that kind, and |
| (c) | people who are, or are likely to be, responsible for the provision of care or treatment to P in a professional capacity, and |
| (d) | if it is practicable and appropriate to consult with them, any other person engaged in caring for P, whether or not in a professional capacity.'. |
Exceptions
Tom Clarke
NC26
To move the following Clause:—
'(1) The duty to identify and consult an independent advocate in relation to serious treatment or major changes in accommodation and support arrangements for P shall be considered discharged by the relevant authority where that authority has consulted and accepted the representations of either—
| (a) | a donee of a relevant lasting power of attorney created by P, or |
| (b) | a deputy appointed for relevant purposes by the court for P, or |
| (c) | a donee of a relevant enduring power of attorney (within the meaning of Schedule 4) created by P, or |
| (d) | an independent advocate already recognised by the relevant authority as representing the interests of P. |
(2) Subsection (1) does not apply if—
| (a) | an agreement between person P and D cannot be reached about a decision or action and where D is employed by an NHS body or local authority social services or D is contracted by an NHS body or local authority social services in respect of the provision of care and treatment for P, or |
| (b) | there is a difference in view between person P and any person who is consulted under section 4(6) and the decision or action is the responsibility of an NHS or local authority social services or organisation contracted by an NHS body or local authority social services.'. |
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