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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(i)
any health record,
(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),
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which the person holding the record considers may be relevant to the
independent consultee’s investigation.
(7)
In this section and section 35, “the appropriate authority” means—
(a)
in relation to the provision of the services of independent consultees in
England, the Secretary of State, and
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(b)
in relation to the provision of the services of independent consultees in
Wales, the National Assembly for Wales.
(8)
“Prescribed” means prescribed by the regulations.
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Duty to seek advice in connection with serious medical treatment
(1)
This section applies if an NHS body—
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(a)
is proposing to provide, or secure the provision of, serious medical
treatment for a person (“P”) who lacks capacity to consent to the
treatment, and
(b)
is satisfied that there is no person, other than one engaged in providing
care or treatment for P in a professional capacity or for remuneration,
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whom it would be appropriate to consult about P’s best interests.
(2)
But this section does not apply if P’s treatment is regulated by Part 4 of the
Mental Health Act.
(3)
Before the treatment is provided, the NHS body must seek advice from an
independent consultee as to P’s best interests and, in particular, as to the
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matters mentioned in section 4(5).
(4)
If the treatment needs to be provided as a matter of urgency, it may be
provided even though the NHS body has not been able to comply with
subsection (3).
(5)
If the independent consultee gives the NHS body advice about P’s best
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interests it must take it into account in providing, or securing the provision of,
treatment for P.
(6)
“Serious medical treatment” means treatment which involves providing,
withholding or withdrawing treatment of a kind prescribed by regulations
made by the appropriate authority.
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(7)
“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.
36
Duty of NHS body to seek advice before arranging accommodation
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(1)
This section applies if an NHS body proposes to make arrangements—
(a)
for the provision of accommodation in a hospital or care home for a
person (“P”) who lacks capacity to agree to the arrangements, or
(b)
for a change in P’s accommodation to another hospital or care home,

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Part 1 — Persons who lack capacity
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and is satisfied that there is no person, other than one engaged in providing
care or treatment for P in a professional capacity or for remuneration, whom it
would be appropriate for it to consult about P’s best interests.
(2)
But this section does not apply if P is accommodated as a result of an obligation
imposed on him under the Mental Health Act.
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(3)
Before making the arrangements, the NHS body must seek advice from an
independent consultee as to P’s best interests and, in particular, as to the
matters mentioned in section 4(5) unless it is satisfied that—
(a)
the accommodation is likely to be provided for a continuous period
which is less than the applicable period, or
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(b)
the arrangements need to be made as a matter of urgency.
(4)
If the NHS body—
(a)
did not seek advice from an independent consultee before making the
arrangements because it was satisfied that subsection (3)(a) or (b)
applied, but
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(b)
subsequently has reason to believe that the accommodation is likely to
be provided for a continuous period—
(i)
beginning with the day on which accommodation was first
provided in accordance with the arrangements, and
(ii)
ending on or after the expiry of the applicable period,
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it must seek advice from an independent consultee.
(5)
If the independent consultee gives the NHS body advice about P’s best
interests, the NHS body must take that advice into account in deciding what
arrangements to make for P.
(6)
“Care home” has the meaning given in section 3 of the Care Standards Act 2000
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(c.14).
(7)
“Hospital” means—
(a)
a health service hospital as defined by section 128 of the National
Health Service Act 1977 (c. 49), or
(b)
an independent hospital as defined by section 2 of the Care Standards
30
Act 2000 (c. 14).
(8)
“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.
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(9)
“Applicable period” means—
(a)
in relation to accommodation in a hospital, 28 days, and
(b)
in relation to accommodation in a care home, 8 weeks.
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Duty of local authority to seek advice before arranging accommodation
(1)
This section applies if a local authority propose to make arrangements—
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(a)
for the provision of residential accommodation for a person (“P”) who
lacks capacity to agree to the arrangements, or
(b)
for a change in P’s residential accommodation,

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Part 1 — Persons who lack capacity
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and are satisfied that there is no person, other than one engaged in providing
care or treatment for P in a professional capacity or for remuneration, whom it
would be appropriate for them to consult about P’s best interests.
(2)
But this section applies only if the accommodation is to be provided in
accordance with—
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(a)
section 21 or 29 of the National Assistance Act 1948 (c. 29), or
(b)
section 117 of the Mental Health Act,
as the result of a decision taken by the local authority under section 47 of the
National Health Service and Community Care Act 1990 (c. 19).
(3)
This section does not apply if P is accommodated as a result of an obligation
10
imposed on him under the Mental Health Act.
(4)
Before making the arrangements, the local authority must seek advice from an
independent consultee as to P’s best interests and, in particular, as to the
matters mentioned in section 4(5) unless they are satisfied that—
(a)
the accommodation is likely to be provided for a continuous period of
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less than 8 weeks, or
(b)
the arrangements need to be made as a matter of urgency.
(5)
If the local authority—
(a)
did not seek advice from an independent consultee before making the
arrangements because they were satisfied that subsection (4)(a) or (b)
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applied, but
(b)
subsequently have reason to believe that the accommodation is likely
to be provided for a continuous period that will end 8 weeks or more
after the day on which accommodation was first provided in
accordance with the arrangements,
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they must seek advice from an independent consultee.
(6)
If the independent consultee gives the local authority advice about P’s best
interests, they must take that advice into account in deciding what
arrangements to make for P.
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Exceptions
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Sections 35(3), 36(3) and 37(4) do not apply if there is—
(a)
a person nominated by P (in whatever manner) as a person to be
consulted in matters affecting his interests,
(b)
a donee of a lasting power of attorney created by P,
(c)
a deputy appointed by the court for P,
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(d)
a donee of an enduring power of attorney (within the meaning of
Schedule 4) created by P.
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Power to adjust role of independent consultee service
(1)
The appropriate authority may make regulations—
(a)
expanding the role of independent consultees in relation to persons
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who lack capacity, and
(b)
adjusting the obligation to make arrangements imposed by section 34.
(2)
The regulations may, in particular—

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Part 1 — Persons who lack capacity
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(a)
prescribe circumstances (different to those set out in sections 35, 36 and
37) in which advice must be sought from an independent consultee, in
respect of a person who lacks capacity, by a person of a prescribed
description, and
(b)
include provision similar to any made by section 35, 36, 37 or 38.
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(3)
“Appropriate authority” has the same meaning as in section 34.
Miscellaneous and supplementary
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Codes of practice
(1)
The Lord Chancellor must prepare and issue one or more codes of practice—
(a)
for the guidance of persons assessing whether a person has capacity in
10
relation to any matter,
(b)
for the guidance of persons acting in connection with the care or
treatment of another person (see section 5),
(c)
for the guidance of donees of lasting powers of attorney,
(d)
for the guidance of deputies appointed by the court,
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(e)
with respect to the provisions of sections 24 to 26 (advance decisions
and apparent advance decisions), and
(f)
with respect to such other matters concerned with this Act as he thinks
fit.
(2)
The Lord Chancellor may from time to time revise a code.
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(3)
The Lord Chancellor may delegate the preparation or revision of the whole or
any part of a code so far as he considers expedient.
(4)
It is the duty of a person to have regard to any relevant code if he is acting in
relation to a person who lacks capacity and is doing so in one or more of the
following ways—
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(a)
as the donee of a lasting power of attorney,
(b)
as a deputy appointed by the court,
(c)
in a professional capacity,
(d)
for remuneration.
(5)
If it appears to a court or tribunal conducting any criminal or civil proceedings
30
that—
(a)
a provision of a code, or
(b)
a failure to comply with a code,

is relevant to a question arising in the proceedings, the provision or failure
must be taken into account in deciding the question.
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(6)
A code under subsection (1)(d) may contain separate guidance for deputies
appointed by virtue of paragraph 1(2) of Schedule 5 (functions of deputy
conferred on receiver appointed under the Mental Health Act).
(7)
In this section and in section 41 “code” means a code prepared or revised under
this section.
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41
Codes of practice: procedure
(1)
Before preparing or revising a code, the Lord Chancellor must consult—

Mental Capacity Bill
Part 2 — The Court of Protection and the Public Guardian
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(a)
the National Assembly for Wales, and
(b)
such other persons as he considers appropriate.
(2)
The Lord Chancellor may not issue a code unless—
(a)
a draft of the code has been laid by him before both Houses of
Parliament, and
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(b)
the 40 day period has elapsed without either House resolving not to
approve the draft.
(3)
The Lord Chancellor must arrange for any code that he has issued to be
published in such a way as he considers appropriate for bringing it to the
attention of persons likely to be concerned with its provisions.
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(4)
“40 day period”, in relation to the draft of a proposed code, means—
(a)
if the draft is laid before one House on a day later than the day on which
it is laid before the other House, the period of 40 days beginning with
the later of the two days;
(b)
in any other case, the period of 40 days beginning with the day on
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which it is laid before each House.
(5)
In calculating the period of 40 days, no account is to be taken of any period
during which Parliament is dissolved or prorogued or during which both
Houses are adjourned for more than 4 days.
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Ill-treatment or neglect
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(1)
A person is guilty of an offence if he—
(a)
has the care of a person who lacks or whom he reasonably believes to
lack capacity, or is the donee of a lasting power of attorney or a deputy
appointed for a person by the court, and
(b)
ill-treats or wilfully neglects the person concerned.
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(2)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to imprisonment for a term not exceeding 12
months or a fine not exceeding the statutory maximum or both;
(b)
on conviction on indictment, to imprisonment for a term not exceeding
5 years or a fine or both.
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Part 2
The Court of Protection and the Public Guardian
The Court of Protection
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The Court of Protection
(1)
There is to be a superior court of record known as the Court of Protection.
35
(2)
The court is to have an official seal.
(3)
The court may sit at any place in England and Wales, on any day and at any
time.
(4)
The court is to have a central office and registry at a place appointed by the
Lord Chancellor.
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Part 2 — The Court of Protection and the Public Guardian
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(5)
The Lord Chancellor may designate as additional registries of the court any
district registry of the High Court and any county court office.
(6)
The office of the Supreme Court called the Court of Protection ceases to exist.
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The judges of the Court of Protection
(1)
Subject to Court of Protection Rules under section 49(2)(d), the jurisdiction of
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the court is exercisable by a judge nominated for that purpose by—
(a)
the Lord Chancellor, or
(b)
a person acting on the Lord Chancellor’s behalf.
(2)
To be nominated, a judge must be—
(a)
the President of the Family Division,
10
(b)
the Vice-Chancellor,
(c)
a puisne judge of the High Court,
(d)
a circuit judge, or
(e)
a district judge.
(3)
The Lord Chancellor must—
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(a)
appoint one of the judges nominated by virtue of subsection (2)(a) to (c)
to be President of the Court of Protection, and
(b)
appoint another of those judges to be Vice-President of the Court of
Protection.
(4)
The Lord Chancellor must appoint one of the judges nominated by virtue of
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subsection (2)(d) or (e) to be Senior Judge of the Court of Protection, having
such administrative functions in relation to the court as the Lord Chancellor
may direct.
Supplementary powers
45
General powers and effect of orders etc.
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(1)
The court has in connection with its jurisdiction the same powers, rights,
privileges and authority as the High Court.
(2)
Section 204 of the Law of Property Act 1925 (c. 20) (orders of High Court
conclusive in favour of purchasers) applies in relation to orders and directions
of the court as it applies to orders of the High Court.
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(3)
Office copies of orders made, directions given or other instruments issued by
the court and sealed with its official seal are admissible in all legal proceedings
as evidence of the originals without any further proof.
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Interim orders and directions
The court may, pending the determination of an application to it in relation to
35
a person (“P”), make an order or give directions in respect of any matter if—
(a)
there is reason to believe that P lacks capacity in relation to the matter,
(b)
the matter is one to which its powers under this Act extend, and
(c)
it is in P’s best interests to make the order, or give the directions,
without delay.
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