Mental Capacity Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Part 1 — Persons who lack capacity
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(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.
(4)
R must provide the person identified under subsection (2), or nominated under
5
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.
(5)
If, at any time, the person consulted advises R that in his opinion P’s wishes
10
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
in it;
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(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subsection (7), that P is withdrawn from the project.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
section.
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(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
may make such declaration or order as it considers appropriate.
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(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
(b)
it is not reasonably practicable to consult under the previous provisions
30
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
(b)
where it is not reasonably practicable in the time available to obtain that
35
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.
(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
40
of urgency.
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Additional safeguards
(1)
This section applies in relation to a person who is taking part in an approved
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—
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Mental Capacity Bill
Part 1 — Persons who lack capacity
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(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.
(3)
If he indicates (in any way) that he wishes to be withdrawn from the project he
must be withdrawn without delay.
5
(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
research being carried out on, or in relation to, P.
Independent consultee service
10
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
advice for the purposes of sections 35, 36 and 37.
(2)
The appropriate authority may make regulations—
15
(a)
as to the appointment of independent consultees;
(b)
as to the functions of independent consultees in relation to sections 35,
36 and 37.
(3)
The regulations may, in particular, provide—
(a)
that a person may act as an independent consultee only in such
20
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.
(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
25
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.
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(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
asked for advice, and
(b)
may, at all reasonable times, examine and take copies of—
35
(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—

Mental Capacity Bill
Part 1 — Persons who lack capacity
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(a)
in relation to the provision of the services of independent consultees in
England, the Secretary of State, and
(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.
5
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Duty to seek advice in connection with serious medical treatment
(1)
This section applies if an NHS body—
(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
10
(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,
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.
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(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
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
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subsection (3).
(5)
If the independent consultee gives the NHS body advice about P’s best
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,
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withholding or withdrawing treatment of a kind prescribed by regulations
made by the appropriate authority.
(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
30
(b)
the National Assembly for Wales, in relation to bodies in Wales.
36
Duty of NHS body to seek advice before arranging accommodation
(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
35
(b)
for a change in P’s accommodation to another hospital or care home,

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
40
imposed on him under the Mental Health Act.

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Part 1 — Persons who lack capacity
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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
5
(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
10
(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
20
(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
25
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—
35
(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,

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
40
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—
(a)
section 21 or 29 of the National Assistance Act 1948 (c. 29), or
(b)
section 117 of the Mental Health Act,
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Mental Capacity Bill
Part 1 — Persons who lack capacity
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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
imposed on him under the Mental Health Act.
(4)
Before making the arrangements, the local authority must seek advice from an
5
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
less than 8 weeks, or
(b)
the arrangements need to be made as a matter of urgency.
10
(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)
applied, but
(b)
subsequently have reason to believe that the accommodation is likely
15
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,

they must seek advice from an independent consultee.
(6)
If the independent consultee gives the local authority advice about P’s best
20
interests, they must take that advice into account in deciding what
arrangements to make for P.
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Exceptions
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
25
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,
(d)
a donee of an enduring power of attorney (within the meaning of
Schedule 4) created by P.
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39
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
who lack capacity, and
(b)
adjusting the obligation to make arrangements imposed by section 34.
35
(2)
The regulations may, in particular—
(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
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(b)
include provision similar to any made by section 35, 36, 37 or 38.
(3)
“Appropriate authority” has the same meaning as in section 34.