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

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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.'.


Appointment of independent advocates

   

Mr Tom Clarke

NC27

To move the following Clause:—

    '(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 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.

    (3)   The appropriate authority may make regulations—

      (a) as to the appointment or recognition of independent advocates for the purposes of this Act.

      (b) as to the functions of independent advocates in relation to sections New Clauses 2 and 3.

      (c) that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;

      (d) for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations.

    (4)   In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision.

    (5)   The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

      (a) For the purpose of enabling him to carry out his functions, an independent advocate—

      (i) may interview in private the person he has been asked to support and

      (ii) may examine any record of a prescribed kind which the person holding the record considers may be relevant to the independent advocate's investigation.

    (6)   In this section and section 35, "the appropriate authority" means—

      (a) in relation to the provision of the services of independent advocates in England, the Secretary of State, and

      (b) in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'.


ORDERS OF THE HOUSE [11TH AND 12TH OCTOBER 2004]

That the following provisions shall apply to the Mental Capacity Bill—

Committal

    1.   The Bill shall be committed to a Standing Committee.

Proceedings in Standing Committee

    2.   Proceedings in the Standing Committee shall (so far as not previously concluded) be brought to a conclusion on 4th November 2004.

    3.   The Standing Committee shall have leave to sit twice on the first day on which it meets.

Consideration and Third Reading

    4.   Proceedings on consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.

    5.   Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

    6.   Sessional Order B (programming committees) made on 28th June 2001 shall not apply to proceedings on consideration and Third Reading.

Other proceedings

    7.   Any other proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) may be programmed.


PROGRAMME ORDERS OF THE COMMITTEE [19TH AND
26TH OCTOBER 2004]

That—

    (1)   during proceedings on the Mental Capacity Bill, the Standing Committee shall (in addition to its first meeting on Tuesday 19th October at 9.30 a.m.) meet on—

      (a) Tuesday 19th October at 2.30 p.m.,

      (b) Thursday 21st October at 9.30 a.m. and 2.30 p.m.,

      (c) Tuesday 26th October at 9.30 a.m. and 2.30 p.m.,

      (d) Thursday 28th October at 9.30 a.m. and 2.30 p.m.,

      (e) Tuesday 2nd November at 9.30 a.m. and 2.30 p.m.,

      (f) Thursday 4th November at 9.30 a.m. and 2.30 p.m.;

    (2)   proceedings in the Standing Committee shall be taken in the following order, namely Clauses 1 to 9, Schedule 1, Clauses 10 to 18, Schedule 2, Clauses 19 to 59, Schedule 3, Clauses 60 to 62, Schedules 4 and 5, Clause 63, Schedules 6 and 7, Clauses 64 and 65, new Clauses, new Schedules, remaining proceedings on the Bill;

    (3)   the proceedings on Clauses 1 to 9, Schedule 1, Clauses 10 to 18, Schedule 2 and Clauses 19 to 23 shall (so far as not previously concluded) be brought to a conclusion at 5 p.m. on Tuesday 26th October;

    (3A)   the proceedings on Clauses 24 to 27 shall (so far as not previously concluded) be brought to a conclusion at 11.25 a.m. on Thursday 28th October;

    (4)   the remaining proceedings shall (so far as not previously concluded) be brought to a conclusion at 5 p.m. on Thursday 4th November.


 
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