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

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Amendment of care plan

   

Mrs Angela Browning

NC17

To move the following Clause:—

    '(1)   The responsible clinician may amend P's care plan at any time.

    (2)   Sections H to K apply to an amended care plan as they apply to a care plan.

    (3)   If the responsible clinician amends P's care plan, the managers of the hospital at which P is resident must secure that the amended plan is included in P's records as soon as practicable after it is prepared.'.


Review

   

Mrs Angela Browning

NC18

To move the following Clause:—

    '(1)   A care plan for P must specify the date on or before which P's responsible clinician must carry out a review (the "review date").

    (2)   The first review date must be not more than six months after the day on which the plan is approved under section K.

    (3)   Each subsequent review date must be not more than six months after the previous one.

    (4)   P's representative may request a review at any time, but may not make more than one request in any 6 months.

    (5)   On each review the responsible clinician must consider—

      (a) whether the conditions specified in section E are met,

      (b) the date to be substituted in the care plan at the next review date, and

      (c) whether the care plan should be otherwise amended.

    (6)   If the responsible clinician determines that any of the conditions under E are not met in P's case, P ceases to be a qualifying patient.

    (7)   The responsible clinician must inform P's representative in writing of the determinations made on any review and the reasons for them.'.


Refusal of a request for review

   

Mrs Angela Browning

NC19

To move the following Clause:—

    '(1)   If the responsible clinician refuses a request under section M(4 for a review, he must, if required to do so by P or his advocate or representative, refer his decision to a member of the Expert Panel who is a registered medical practitioner (the "medical adviser").

    (2)   If, on a reference under subsection (1), the medical adviser decides that the review ought to be carried out, the responsible clinician may either—

      (a) carry out the review, or

      (b) apply to the court.

    (3)   If—

      (a) the responsible clinician fails to make a reference under subsection (1),

      (b) the medical adviser agrees, on a reference under that subsection, with the decision not to carry out the review, or

      (c) the responsible clinician fails to act in accordance with subsection (2),

       P may apply to the court.

    (4)   On an application under subsection (2)(b) or (3), the court must determine either—

      (a) that the responsible clinician must carry out the review, or

      (b) that he is not required to carry out the review.'.


Disputes about outcome of review

   

Mrs Angela Browning

NC20

To move the following Clause:—

    '(1)   The responsible clinician must, if requested to do so by P's representative refer to the medical adviser appointed by the Secretary of State for that purpose any complaint made by P's representative as to the outcome of a review.

    (2)   If, on a reference under subsection (1) the complaint is not resolved within the prescribed time and the medical adviser upholds the complaint, the responsible clinician must apply to the court.

    (3)   If—

      (a) the responsible clinician fails to make a reference under subsection (1),

      (b) the complaint is not resolved within the prescribed time, and the medical adviser dismisses the complaint, or

      (c) the responsible clinician fails to act in accordance with subsection 2,

    P's representative may apply to the court.

    (4)   On an application under subsection (2) or (3), the court must, so far as relevant to the application, make a declaration either—

      (a) that the determination of the responsible clinician in respect of that matter is approved, or

      (b) that the determination of the responsible clinician in respect of that matter is not approved.'.


Application to the court for discharge

   

Mrs Angela Browning

NC21

To move the following Clause:—

    '(1)   An application may be made to the court by P or by his or her representative for an order requiring the managers of the hospital to discharge P.

    (2)   If the court is satisfied that P is being unlawfully detained at the hospital, it must make the order.'.


Right to an advocate in connection with the provision of accommodation

   

Mr Tom Clarke

NC22

To move the following Clause:—

    '(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 where the accommodation on 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 exceeds those set in regulations under section 22 National Assistance Act 1948 and where it appears to the relevant authority that P may lack capacity in relation to that major change in P's accommodation and/or support arrangements.

    (2)   A major change for the purposes of this section means any change

      (a) to 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.

    (3)   Any NHS body or local authority must seek and take into account representations from in independent advocate if it is liable to provide an assessment or assessments under any of the following for the person P where it appears to the relevant authority that P may lack capacity in relation to specific matters connected to that assessment or assessments:

      (a) section 47 NHS 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 Mental Health Act 1983,

      (c) section 1 and section 5 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 or

      (f) any care planning for in-patient care, care following discharge or continuing care under the Care Programme Approach.

    (4)   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.

    (5)   "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.'.


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;

      (c) abortion;

      (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.'.



 
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