Mental Capacity Bill

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Part 1 — Persons who lack capacity
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Powers of the court in relation to lasting powers of attorney
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Powers of court in relation to validity of lasting powers of attorney
(1)
This section and section 23 apply if —
(a)
a person (“P”) has executed or purported to execute an instrument with
a view to creating a lasting power of attorney, or
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(b)
an instrument has been registered as a lasting power of attorney
conferred by P.
(2)
The court may determine any question relating to—
(a)
whether the requirements for the creation of a lasting power of attorney
have been met;
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(b)
whether the power has been revoked or has otherwise come to an end.
(3)
Subsection (4) applies if the court is satisfied—
(a)
that fraud or undue pressure was used to induce P—
(i)
to execute an instrument for the purpose of creating a lasting
power of attorney, or
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(ii)
to create a lasting power of attorney, or
(b)
that the donee (or, if more than one, any of them) of a lasting power of
attorney—
(i)
has behaved, or is behaving, in a way that contravenes his
authority or is not in P’s best interests, or
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(ii)
proposes to behave in a way that would contravene his
authority or would not be in P’s best interests.
(4)
The court may—
(a)
direct that an instrument purporting to create the lasting power of
attorney is not to be registered, or
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(b)
if P lacks capacity to do so, revoke the instrument or the lasting power
of attorney.
(5)
If there is more than one donee, the court may under subsection (4)(b) revoke
the instrument or the lasting power of attorney so far as it relates to any of
them.
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(6)
“Donee” includes an intended donee.
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Powers of court in relation to operation of lasting powers of attorney
(1)
The court may determine any question as to the meaning or effect of a lasting
power of attorney.
(2)
The court may—
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(a)
give directions with respect to decisions—
(i)
which the donee of a lasting power of attorney has authority to
make, and
(ii)
which P lacks capacity to make;
(b)
give any consent or authorisation to act which the donee would have to
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obtain from P if P had capacity to give it.
(3)
The court may, if P lacks capacity to do so—

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(a)
give directions to the donee with respect to the rendering by him of
reports or accounts and the production of records kept by him for that
purpose;
(b)
require the donee to supply information or produce documents or
things in his possession as donee;
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(c)
give directions with respect to the remuneration or expenses of the
donee;
(d)
relieve the donee wholly or partly from any liability which he has or
may have incurred on account of a breach of his duties as donee.
(4)
The court may authorise the making of gifts which are not within section 12(2)
10
(permitted gifts).
(5)
Where two or more donees are appointed under a lasting power of attorney,
this section applies as if references to the donee were to all or any of them.
Advance decisions to refuse treatment
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Advance decisions to refuse treatment: general
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(1)
In this section and sections 25 and 26, “advance decision” means a decision
made by a person (“P”), after he has reached 18 and when he has capacity to do
so, that if—
(a)
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
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providing health care for him, and
(b)
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.
(2)
For the purposes of subsection (1)(a), a decision may be regarded as specifying
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a treatment or circumstances even though expressed in layman’s terms.
(3)
P may withdraw or alter an advance decision at any time when he has capacity
to do so.
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Validity and applicability of advance decisions
(1)
An advance decision does not affect the liability which a person may incur for
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carrying out or continuing a treatment in relation to P unless the decision is at
the material time—
(a)
valid, and
(b)
applicable to the treatment.
(2)
An advance decision is not valid if P—
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(a)
has withdrawn the decision at a time when he had capacity to do so,
(b)
has, under a lasting power of attorney created after the advance
decision was made, conferred authority on the donee (or, if more than
one, any of them) to give or refuse consent to the treatment to which the
advance decision relates, or
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(c)
has done anything else clearly inconsistent with the advance decision
remaining his fixed decision.

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(3)
An advance decision is not applicable to the treatment in question if at the
material time P has capacity to give or refuse consent to it.
(4)
An advance decision is not applicable to the treatment in question if—
(a)
that treatment is not the treatment specified in the advance decision,
(b)
any circumstances specified in the advance decision are absent, or
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(c)
there are reasonable grounds for believing that circumstances exist
which P did not anticipate at the time of the advance decision and
which would have affected his decision had he anticipated them.
(5)
An advance decision is not applicable to life-sustaining treatment unless P
specified in the decision that it was to apply to such treatment.
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(6)
The existence of any lasting power of attorney other than one of a description
mentioned in subsection (2)(b) does not prevent the advance decision from
being regarded as valid and applicable.
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Effect of advance decisions
(1)
If P has made an advance decision which is—
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(a)
valid, and
(b)
applicable to a treatment,

the decision has effect as if he had made it, and had had capacity to make it, at
the time when the question arises whether the treatment should be carried out
or continued.
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(2)
A person does not incur liability for carrying out or continuing the treatment
unless, at the time, he is satisfied that an advance decision exists which is valid
and applicable to the treatment.
(3)
A person does not incur liability for the consequences of withholding or
withdrawing a treatment from P if, at the time, he reasonably believes that an
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advance decision exists which is valid and applicable to the treatment.
(4)
The court may make a declaration as to whether an advance decision—
(a)
exists;
(b)
is valid;
(c)
is applicable to a treatment.
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(5)
Nothing in an apparent advance decision stops a person—
(a)
providing life-sustaining treatment, or
(b)
doing any act 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.
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Excluded decisions
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Family relationships etc.
(1)
Nothing in this Act permits a decision on any of the following matters to be
made on behalf of a person—
(a)
consenting to marriage or a civil partnership,
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(b)
consenting to have sexual relations,

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(c)
consenting to a decree of divorce being granted on the basis of two
years’ separation,
(d)
consenting to a dissolution order being made in relation to a civil
partnership on the basis of two years’ separation,
(e)
consenting to a child’s being placed for adoption by an adoption
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agency,
(f)
consenting to the making of an adoption order,
(g)
discharging parental responsibilities in matters not relating to a child’s
property,
(h)
giving a consent under the Human Fertilisation and Embryology Act
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1990 (c. 37).
(2)
“Adoption order” means—
(a)
an adoption order within the meaning of the Adoption and Children
Act 2002 (c. 38) (including a future adoption order), and
(b)
an order under section 84 of that Act (parental responsibility prior to
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adoption abroad).
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Mental Health Act matters
(1)
Nothing in this Act authorises anyone—
(a)
to give a patient medical treatment for mental disorder, or
(b)
to consent to a patient’s being given medical treatment for mental
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disorder,

if, at the time when it is proposed to treat the patient, his treatment is regulated
by Part 4 of the Mental Health Act.
(2)
“Medical treatment”, “mental disorder” and “patient” have the same meaning
as in that Act.
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Voting rights
(1)
Nothing in this Act permits a decision on voting at an election for any public
office, or at a referendum, to be made on behalf of a person.
(2)
“Referendum” has the same meaning as in section 101 of the Political Parties,
Elections and Referendums Act 2000 (c. 41).
30
.
Research
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Research
(1)
Intrusive research carried out on, or in relation to, a person who lacks capacity
to consent to it is unlawful unless it is carried out—
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(a)
as part of a research project which is for the time being approved by the
appropriate body for the purposes of this Act in accordance with
section 31, and
(b)
in accordance with sections 32 and 33.
(2)
Research is intrusive if it is of a kind that would be unlawful if it was carried
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out—
(a)
on or in relation to a person who had capacity to consent to it, but

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(b)
without his consent.
(3)
A clinical trial which is subject to the provisions of clinical trials regulations is
not to be treated as research for the purposes of this section.
(4)
“Appropriate body”, in relation to a research project, means the person,
committee or other body specified in regulations made by the Secretary of State
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as the appropriate body in relation to a project of the kind in question.
(5)
“Clinical trials regulations” means—
(a)
the Medicines for Human Use (Clinical Trials) Regulations 2004 (S.I.
2004/1031) and any other regulations replacing those regulations or
amending them, and
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(b)
any other regulations relating to clinical trials and designated by the
Secretary of State as clinical trials regulations for the purposes of this
section.
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Requirements for approval
(1)
The appropriate body may not approve a research project for the purposes of
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this Act unless satisfied that the following requirements will be met in relation
to research carried out as part of the project on, or in relation to, a person who
lacks capacity to consent to taking part in the project (“P”).
(2)
The research must be connected with a condition which—
(a)
affects P, and
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(b)
is attributable to the impairment of, or disturbance in the functioning
of, the mind or brain.
(3)
There must be reasonable grounds for believing that the research would not be
as effective if carried out only on, or only in relation to, persons who have
capacity to consent to taking part in the project.
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(4)
The research must—
(a)
have the potential to benefit P without imposing on P a burden that is
disproportionate to the potential benefit to P, or
(b)
be intended to provide knowledge of the causes or treatment of, or of
the care of persons affected by, the same or a similar condition.
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(5)
If the research falls within paragraph (b) of subsection (4) but not within
paragraph (a), there must be reasonable grounds for believing—
(a)
that the risk to P from taking part in the project is likely to be negligible,
and
(b)
that anything done to, or in relation to, P will not—
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(i)
interfere with P’s freedom of action or privacy in a significant
way, or
(ii)
be unduly invasive or restrictive.
(6)
There must be reasonable arrangements in place for ensuring that the
requirements of sections 32 and 33 will be met.
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Consulting carers etc
(1)
This section applies if a person (“R”)—
(a)
is conducting an approved research project, and

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(b)
wishes to carry out research, as part of the project, on or in relation to a
person (“P”) who lacks capacity to consent to taking part in the project.
(2)
R must take reasonable steps to identify a person who—
(a)
otherwise than in a professional capacity or for remuneration, is
engaged in caring for P or is interested in P’s welfare, and
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(b)
is prepared to be consulted by R under this section.
(3)
If R is unable to identify such a person he must, in accordance with guidance
issued by the Secretary of State, nominate a person who—
(a)
is prepared to be consulted by R under this section, but
(b)
has no connection with the project.
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(4)
R must provide the person identified under subsection (2), or nominated under
subsection (3), with information about the project and ask him—
(a)
for advice as to whether P should take part in the project, and
(b)
what, in his opinion, P’s wishes and feelings about taking part in the
project would be likely to be if P had capacity in relation to the matter.
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(5)
If, at any time, the person consulted advises R that in his opinion P’s wishes
and feelings would be likely to lead him to decline to take part in the project
(or to wish to withdraw from it) if he had capacity in relation to the matter, R
must ensure—
(a)
if P is not already taking part in the project, that he does not take part
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in it;
(b)
if P is taking part in the project and no application is made under
subsection (7), that P is withdrawn from the project.
(6)
The fact that a person is the donee of a lasting power of attorney given by P, or
is P’s deputy, does not prevent him from being the person consulted under this
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section.
(7)
If R is satisfied that the research has the potential to benefit P he may, if given
advice of the kind mentioned in subsection (5), apply to the court.
(8)
If the court is satisfied that the research has the potential to benefit P without
imposing on P a burden that is disproportionate to the potential benefit to P, it
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may make such declaration or order as it considers appropriate.
(9)
Subsection (10) applies if R considers that, having regard to the nature of the
research and of the particular circumstances of the case—
(a)
it is necessary to take action for the purposes of the research as a matter
of urgency, but
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(b)
it is not reasonably practicable to consult under the previous provisions
of this section.
(10)
R may take the action if—
(a)
he has the agreement of a registered medical practitioner who is not
concerned in P’s treatment or care, or
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(b)
where it is not reasonably practicable in the time available to obtain that
agreement, he acts in accordance with a procedure approved by the
appropriate body at the time when the research project was approved
under section 31.

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(11)
But R may not continue to act in reliance on subsection (10) if he has reasonable
grounds for believing that it is no longer necessary to take the action as a matter
of urgency.
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Additional safeguards
(1)
This section applies in relation to a person who is taking part in an approved
5
research project even though he lacks capacity to consent to taking part.
(2)
Nothing may be done to, or in relation to, him in the course of the research—
(a)
to which he objects (whether by showing signs of resistance or
otherwise), or
(b)
which would be contrary to an advance decision of his which has effect.
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(3)
If he indicates (in any way) that he wishes to be withdrawn from the project he
must be withdrawn without delay.
(4)
P must be withdrawn from the project, without delay, if at any time the person
conducting the research has reasonable grounds for believing that one or more
of the requirements set out in section 31(2) to (6) is no longer met in relation to
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research being carried out on, or in relation to, P.
Independent consultee service
34
Appointment of independent consultees
(1)
The appropriate authority must make such arrangements as it considers
reasonable to enable persons (“independent consultees”) to be available to give
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advice for the purposes of sections 35, 36 and 37.
(2)
The appropriate authority may make regulations—
(a)
as to the appointment of independent consultees;
(b)
as to the functions of independent consultees in relation to sections 35,
36 and 37.
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(3)
The regulations may, in particular, provide—
(a)
that a person may act as an independent consultee only in such
circumstances, or only subject to such conditions, as may be prescribed;
(b)
for the appointment of a person as an independent consultee to be
subject to approval in accordance with the regulations.
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(4)
In making arrangements under subsection (1), the appropriate authority must
have regard to the principle that advice 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
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relation to, persons carrying out functions in accordance with the
arrangements.
(6)
For the purpose of enabling him to carry out his functions, an independent
consultee—
(a)
may interview in private the person in relation to whom he has been
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asked for advice, and
(b)
may, at all reasonable times, examine and take copies of—