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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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
relation to any matter,
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(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,
(e)
with respect to the provisions of sections 24 to 26 (advance decisions
10
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.
(3)
The Lord Chancellor may delegate the preparation or revision of the whole or
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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—
(a)
as the donee of a lasting power of attorney,
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(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
that—
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(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.
(6)
A code under subsection (1)(d) may contain separate guidance for deputies
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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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Codes of practice: procedure
35
(1)
Before preparing or revising a code, the Lord Chancellor must consult—
(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
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Parliament, and
(b)
the 40 day period has elapsed without either House resolving not to
approve the draft.

Mental Capacity Bill
Part 2 — The Court of Protection and the Public Guardian
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(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.
(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
5
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
which it is laid before each House.
(5)
In calculating the period of 40 days, no account is to be taken of any period
10
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
(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
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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.
(2)
A person guilty of an offence under this section is liable—
(a)
on summary conviction, to imprisonment for a term not exceeding 12
20
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.
Part 2
The Court of Protection and the Public Guardian
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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.
(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
30
time.
(4)
The court is to have a central office and registry at a place appointed by the
Lord Chancellor.
(5)
The Lord Chancellor may designate as additional registries of the court any
district registry of the High Court and any county court office.
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(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
the court is exercisable by a judge nominated for that purpose by—

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Part 2 — The Court of Protection and the Public Guardian
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(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,
(b)
the Vice-Chancellor,
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(c)
a puisne judge of the High Court,
(d)
a circuit judge, or
(e)
a district judge.
(3)
The Lord Chancellor must—
(a)
appoint one of the judges nominated by virtue of subsection (2)(a) to (c)
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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
subsection (2)(d) or (e) to be Senior Judge of the Court of Protection, having
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such administrative functions in relation to the court as the Lord Chancellor
may direct.
Supplementary powers
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General powers and effect of orders etc.
(1)
The court has in connection with its jurisdiction the same powers, rights,
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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.
(3)
Office copies of orders made, directions given or other instruments issued by
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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
a person (“P”), make an order or give directions in respect of any matter if—
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(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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Power to call for reports
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(1)
This section applies where, in proceedings brought in respect of a person (“P”)
under Part 1, the court is considering a question relating to P.
(2)
The court may require a report to be made to it by the Public Guardian or by a
Court of Protection Visitor.
(3)
The court may require a local authority, or an NHS body, to arrange for a
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report to be made—

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Part 2 — The Court of Protection and the Public Guardian
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(a)
by one of its officers or employees, or
(b)
by such other person (other than the Public Guardian or a Court of
Protection Visitor) as the authority, or the NHS body, considers
appropriate.
(4)
The report must deal with such matters relating to P as the court may direct.
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(5)
Court of Protection Rules may specify matters which, unless the court directs
otherwise, must also be dealt with in the report.
(6)
The report may be made in writing or orally, as the court may direct.
(7)
In complying with a requirement, the Public Guardian or a Court of Protection
Visitor may, at all reasonable times, examine and take copies of—
10
(a)
any health record,
(b)
any record of, or held by, a local authority and compiled in connection
with a social services function, and
(c)
any record held by a person registered under Part 2 of the Care
Standards Act 2000 (c. 14),
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so far as the record relates to P.
(8)
If the Public Guardian or a Court of Protection Visitor is making a visit in the
course of complying with a requirement, he may interview P in private.
(9)
If a Court of Protection Visitor who is a Special Visitor is making a visit in the
course of complying with a requirement, he may if the court so directs carry
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out in private a medical, psychiatric or psychological examination of P’s
capacity and condition.
(10)
“NHS body” has the meaning given in section 148 of the Health and Social Care
(Community Health and Standards) Act 2003 (c. 43).
(11)
“Requirement” means a requirement imposed under subsection (2) or (3).
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Practice and procedure
48
Applications to the Court of Protection
(1)
No permission is required for an application to the court for the exercise of any
of its powers under this Act—
(a)
by a person who lacks, or is alleged to lack, capacity,
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(b)
if such a person has not reached 18, by anyone with parental
responsibility for him,
(c)
by the donor or a donee of a lasting power of attorney to which the
application relates,
(d)
by a deputy appointed by the court for a person to whom the
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application relates, or
(e)
by a person named in an existing order of the court, if the application
relates to the order.
(2)
But, subject to Court of Protection Rules and to paragraph 21(2) of Schedule 3
(declarations relating to private international law), permission is required for
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any other application to the court.
(3)
In deciding whether to grant permission the court must, in particular, have
regard to—

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Part 2 — The Court of Protection and the Public Guardian
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(a)
the applicant’s connection with the person to whom the application
relates,
(b)
the reasons for the application,
(c)
the benefit to the person to whom the application relates of a proposed
order or directions, and
5
(d)
whether the benefit can be achieved in any other way.
(4)
“Parental responsibility” has the same meaning as in the Children Act 1989
(c. 41).
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Court of Protection Rules
(1)
The Lord Chancellor may make rules of court (to be called “Court of Protection
10
Rules”) with respect to the practice and procedure of the court.
(2)
Court of Protection Rules may, in particular, make provision—
(a)
as to the manner and form in which proceedings are to be commenced;
(b)
as to the persons entitled to be notified of, and be made parties to, the
proceedings;
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(c)
for the allocation, in such circumstances as may be specified, of any
specified description of proceedings to a specified judge or to specified
descriptions of judges;
(d)
for the exercise of the jurisdiction of the court, in such circumstances as
may be specified, by its officers or other staff;
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(e)
for enabling the court to appoint a suitable person (who may, with his
consent, be the Official Solicitor) to act in the name of, or on behalf of,
or to represent the person to whom the proceedings relate;
(f)
for enabling an application to the court to be disposed of without a
hearing;
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(g)
for enabling the court to proceed with, or with any part of, a hearing in
the absence of the person to whom the proceedings relate;
(h)
for enabling or requiring the proceedings or any part of them to be
conducted in private and for enabling the court to determine who is to
be admitted when the court sits in private and to exclude specified
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persons when it sits in public;
(i)
as to what may be received as evidence (whether or not admissible
apart from the rules) and the manner in which it is to be presented;
(j)
for the enforcement of orders made and directions given in the
proceedings.
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(3)
Court of Protection Rules may, instead of providing for any matter, refer to
provision made or to be made about that matter by directions.
(4)
Court of Protection Rules may make different provision for different areas.
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Practice directions
(1)
The President of the Court of Protection may, with the concurrence of the Lord
40
Chancellor, give directions as to the practice and procedure of the court.
(2)
Directions as to the practice and procedure of the court may not be given by
anyone other than the President of the Court of Protection without the
approval of the President of the Court of Protection and the Lord Chancellor.

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Part 2 — The Court of Protection and the Public Guardian
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(3)
Nothing in this section prevents the President of the Court of Protection,
without the concurrence of the Lord Chancellor, giving directions which
contain guidance as to law or making judicial decisions.
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Rights of appeal
(1)
Subject to the provisions of this section, an appeal lies to the Court of Appeal
5
from any decision of the court.
(2)
Court of Protection Rules may provide that where a decision of the court is
made by—
(a)
a person exercising the jurisdiction of the court by virtue of rules made
under section 49(2)(d),
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(b)
a district judge, or
(c)
a circuit judge,

an appeal from that decision lies to a prescribed higher judge of the court and
not to the Court of Appeal.
(3)
For the purposes of this section the higher judges of the court are—
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(a)
in relation to a person mentioned in subsection (2)(a), a circuit judge or
a district judge;
(b)
in relation to a person mentioned in subsection (2)(b), a circuit judge;
(c)
in relation to any person mentioned in subsection (2), one of the judges
nominated by virtue of section 44(2)(a) to (c).
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(4)
Court of Protection Rules may make provision—
(a)
that, in such cases as may be specified, an appeal from a decision of the
court may not be made without permission;
(b)
as to the person or persons entitled to grant permission to appeal;
(c)
as to any requirements to be satisfied before permission is granted;
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(d)
that where a higher judge of the court makes a decision on an appeal,
no appeal may be made to the Court of Appeal from that decision
unless the Court of Appeal considers that—
(i)
the appeal would raise an important point of principle or
practice, or
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(ii)
there is some other compelling reason for the Court of Appeal
to hear it;
(e)
as to any considerations to be taken into account in relation to granting
or refusing permission to appeal.
Fees and costs
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52
Fees
(1)
The Lord Chancellor may with the consent of the Treasury by order prescribe
fees payable in respect of anything dealt with by the court.
(2)
An order under this section may in particular contain provision as to—
(a)
scales or rates of fees;
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(b)
exemptions from and reductions in fees;
(c)
remission of fees in whole or in part.
(3)
Before making an order under this section, the Lord Chancellor must consult—

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Part 2 — The Court of Protection and the Public Guardian
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(a)
the President of the Court of Protection,
(b)
the Vice-President of the Court of Protection, and
(c)
the Senior Judge of the Court of Protection.
(4)
The Lord Chancellor must take such steps as are reasonably practicable to
bring information about fees to the attention of persons likely to have to pay
5
them.
(5)
Fees payable under this section are recoverable summarily as a civil debt.
53
Costs
(1)
Subject to Court of Protection Rules, the costs of and incidental to all
proceedings in the court are in its discretion.
10
(2)
The rules may in particular make provision for regulating matters relating to
the costs of those proceedings, including prescribing scales of costs to be paid
to legal or other representatives.
(3)
The court has full power to determine by whom and to what extent the costs
are to be paid.
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(4)
The court may, in any proceedings—
(a)
disallow, or
(b)
order the legal or other representatives concerned to meet,

the whole of any wasted costs or such part of them as may be determined in
accordance with the rules.
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(5)
“Legal or other representative”, in relation to a party to proceedings, means
any person exercising a right of audience or right to conduct litigation on his
behalf.
(6)
“Wasted costs” means any costs incurred by a party—
(a)
as a result of any improper, unreasonable or negligent act or omission
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on the part of any legal or other representative or any employee of such
a representative, or
(b)
which, in the light of any such act or omission occurring after they were
incurred, the court considers it is unreasonable to expect that party to
pay.
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Fees and costs: supplementary
(1)
Court of Protection Rules may make provision—
(a)
as to the way in which, and funds from which, fees and costs are to be
paid;
(b)
for charging fees and costs upon the estate of the person to whom the
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proceedings relate;
(c)
for the payment of fees and costs within a specified time of the death of
the person to whom the proceedings relate or the conclusion of the
proceedings.
(2)
A charge on the estate of a person created by virtue of subsection (1)(b) does
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not cause any interest of the person in any property to fail or determine or to
be prevented from recommencing.