S.C.A.
Amendment Paper as at
Tuesday 2nd November 2004
STANDING COMMITTEE A
MENTAL CAPACITY BILL
NOTE
The Amendments have been arranged in accordance with the Programme Orders of the Committee [19th and 26th October 2004].
Mr Tom Clarke
178
Clause 31, page 17, line 17, leave out subsection (3) and insert—
'(3) Research shall only be carried out if research of a similar nature cannot be carried out on an adult who is capable in relation to such a decision.'.
Mr Tom Clarke
179
Clause 31, page 17, line 21, after 'to', insert 'provide real and direct.'.
Mr Tim Boswell
44
Clause 31, page 17, line 23, leave out paragraph (b).
Mr Tom Clarke
180
Clause 31, page 17, line 27, leave out paragraph (a), and insert 'that it entails no risk to P or that'.
Mr Tim Boswell
45
Clause 32, page 18, line 19, leave out 'or is P's deputy'.
Mr Tom Clarke
181
Clause 32, page 18, line 20, at end insert 'but a deputy shall not be able to consent to research under 31(4) unless the court has conferred on the deputy express authority to that effect.'.
Mr Tom Clarke
182
Clause 32, page 18, line 21, leave out subsection (7).'.
Mr Tom Clarke
183
Clause 33, page 19, line 3, at end insert 'or wishes expressed by P in a LPA.'.
Mr Paul Burstow
Paul Holmes
169
Clause 34, page 19, line 10, leave out 'Independent consultee service' and insert 'Independent advocates'.
Mr Tom Clarke
184
Clause 34, page 19, line 10, leave out 'consultee service' and insert 'advocates.'.
Mr Paul Burstow
Paul Holmes
Mr Tom Clarke
170
Clause 34, page 19, line 11, leave out subsection (1) and insert—
'34 Appointment of independent advocates
(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person ("P") when another person ("D") is considering doing an act, or making a decision to do an act.
(2) The assistance available under the arrangements must include—
| (a) | assistance to permit and encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him; |
| (b) | assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider and are relevant to the decision or proposed action if he were able to do so; |
| (c) | assistance to maintain the principles set out in section 1 of this Act.'. |
Mr Paul Burstow
Paul Holmes
Mr Tom Clarke
171
Clause 34, page 19, line 16, leave out 'of independent consultees' and insert 'or recognition of independent advocates for the purposes of this Act'.
Mr Paul Burstow
Paul Holmes
Mr Tom Clarke
172
Clause 34, page 19, line 17, leave out from 'independent' to end of line 18 and insert 'advocates'.
Mr Tim Boswell
46
Clause 34, page 19, line 18, at end insert—
| '(c) | as to the conduct of independent consultees'. |
Mr Paul Burstow
Paul Holmes
Mr Tom Clarke
173
Clause 34, page 19, line 20, leave out 'consultee' and insert 'advocate'.
Mr Paul Burstow
Paul Holmes
Mr Tom Clarke
174
Clause 34, page 19, line 22, leave out 'consultee' and insert 'advocate'.
Mr Paul Burstow
Paul Holmes
Mr Tom Clarke
175
Clause 34, page 19, line 25, leave out 'advice' and insert 'support'.
Mr Tim Boswell
47
Clause 34, page 19, line 26, leave out 'so far as practicable'.
Mr Tim Boswell
48
Clause 34, page 19, line 28, leave out subsection (5).
Mr David Lammy
Ms Rosie Winterton
221
Clause 34, page 19, line 34, leave out 'examine any record of a prescribed kind which' and insert ', at all reasonable times, examine and take copies of—
| (ii) | any record of, or held by, a local authority and compiled in connection with a social services function, and |
| (iii) | any record held by a person registered under Part 2 of the Care Standards Act 2000 (c.14), |
Mr Paul Burstow
Paul Holmes
Mr Tom Clarke
176
Clause 34, page 19, line 42, at end add—
'(9) The provision of assistance may result in the proposed decision or action not taking place under the provisions of this Act.
(10) Nothing in this section obliges P to accept the assistance offered by an independent advocate.'.
Mr Tom Clarke
220
Page 19, line 11, leave out Clause 34.
Mr Tom Clarke
203
Clause 35, page 20, leave out line 1 and insert 'Right to independent advocacy in connection with decisions on serious medical treatment'.
Mr Tim Boswell
49
Clause 35, page 20, line 2, after 'body' insert 'or other registered medical practitioner'.
Mr David Lammy
Ms Rosie Winterton
222
Clause 35, page 20, line 3, after 'provide', insert ', or secure the provision of,'.
Mr David Lammy
Ms Rosie Winterton
223
Clause 35, page 20, line 7, at end insert—
'( ) But this section does not apply if P's treatment is regulated by Part 4 of the Mental Health Act.'.
Mr David Lammy
Ms Rosie Winterton
224
Clause 35, page 20, line 9, after 'interests', insert 'and, in particular, as to the matters mentioned in section 4(5)'.
Mrs Angela Browning
244
Clause 35, page 20, line 9, at end insert—
'(2A) Before treatment is provided the NHS body must seek a second expert opinion with respect to whether the treatment proposed is in the best interests of P.'.
Mr David Lammy
Ms Rosie Winterton
225
Clause 35, page 20, line 14, leave out 'treating' and insert 'providing, or securing the provision of, treatment for'.
Mr Tim Boswell
50
Clause 35, page 20, line 17, after 'State', insert '(subject to an affirmative resolution of both Houses of Parliament)'.
Mr Tom Clarke
214
Page 20, line 1, leave out Clause 35.
Mr Tom Clarke
Mr Paul Burstow
192
Clause 36, page 20, line 23, leave out subsection (1) and insert—
'(1) The specified circumstances in which independent advocacy must be made available shall include consideration of a major change in a person's accommodation and/or support arrangements where the accommodation or support is to be paid for in whole or in part from public funds, or would be but for the fact the person's resources exceed those set in regulations under section 22 of the National Assistance Act 1948.
(1A) A major change for the purposes of this section means any change to—
| (a) | accommodation for a continuous period intended to or likely to exceed 28 days, or |
| (b) | any new contractual arrangements for providing support, for a person who lacks capacity to agree to the changes, where the accommodation or support is to be paid for in whole or in part from public funds, or |
| (c) | where the arrangements need to be made a matter of urgency.'. |
Mr David Lammy
Ms Rosie Winterton
226
Clause 36, page 20, line 29, at end insert—
'( ) But this section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.'.
Mr Tom Clarke
Mr Paul Burstow
193
Clause 36, page 20, line 30, leave out subsection (2) and insert—
'(2) Any NHS body or local authority that is liable to provide an assessment or assessments under—
| (a) | section 47 of the National Health Service and Community Care Act 1990 (and for the avoidance of doubt this includes those assessments under section 3 of the Community Care (Delayed Discharges etc.) Act 2003, |
| (b) | section 117 of the Mental Health Act 1983, |
| (c) | section 1 and section 5 of the Carers and Disabled Children Act 2000, |
| (d) | assessment under the Continuing Care (National Health Service Responsibilities) Directions 2004 or Delayed Discharge (Continuing Care) Directions 2004, |
| (e) | any assessment for services which fall within the functions of a local housing authority (within the meaning of the Housing Act 1985) or any assessment for support under the Supporting People (England) Directions 2003, the Supporting People Grant (England) Guidance 2003 or assessment for charges under the Local Authorities (charges for Specified Welfare Services) (England) Regulations 2003 (S.I., 2003, No. 907), or |
| (f) | any care planning for in-patient care following discharge or continuing care under the Care Programme Approach, |
must seek and take into account representations from an independent advocate.
(2A) Where emergency accommodation and support arrangements have to be made, these arrangements shall be reviewed as soon as possible, taking account of representations made by the independent advocate.'.
