Mental Capacity Bill

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

Mental Capacity Bill

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
70

Administration of Justice Act 1960 (c. 65)
10
In section 12(1)(b) of the Administration of Justice Act 1960 (c. 65) (contempt
of court to publish information about proceedings in private relating to
persons with incapacity) for the words from “under Part VIII” to “that Act”
substitute “under the Mental Capacity Act 2004, or under any provision of
5
the Mental Health Act 1983”.
Industrial and Provident Societies Act 1965 (c. 12)
11
In section 26 of the Industrial and Provident Societies Act 1965 (c. 12)
(payments for mentally incapable people), for subsection (2) substitute—
“(2)
Subsection (1) does not apply where the member or person
10
concerned lacks capacity (within the meaning of the Mental Capacity
Act 2004) for the purposes of this Act and—
(a)
there is a donee of an enduring power of attorney or lasting
power of attorney (within the meaning of the 2004 Act), or a
deputy appointed for the member or person by the Court of
15
Protection, and
(b)
the donee or deputy has power in relation to the member or
person for the purposes of this Act.”.
Compulsory Purchase Act 1965 (c. 56)
12
In Schedule 1 to the Compulsory Purchase Act 1965 (c. 56) (persons without
20
power to sell their interests), for paragraph 1(2)(b) substitute—
“(b)
do not have effect in relation to a person who lacks
capacity (within the meaning of the Mental Capacity Act
2004) for the purposes of this Act if—
(i)
there is a donee of an enduring power of attorney
25
or lasting power of attorney (within the meaning of
the 2004 Act), or a deputy appointed for the person
by the Court of Protection, and
(ii)
the donee or deputy has power in relation to the
person for the purposes of this Act.”.
30
Leasehold Reform Act 1967 (c. 88)
13    (1)
For section 26(2) of the Leasehold Reform Act 1967 (c. 88) (landlord lacking
capacity) substitute—
“(2)
Where a landlord lacks capacity (within the meaning of the Mental
Capacity Act 2004) to exercise his functions as a landlord, those
35
functions are to be exercised—
(a)
by a donee of an enduring power of attorney or lasting power
of attorney (within the meaning of the 2004 Act), or a deputy
appointed for him by the Court of Protection, with power to
exercise those functions, or
40
(b)
if no donee or deputy has that power, by a person authorised
in that respect by that court.”.
      (2)
That amendment does not affect any proceedings pending at the
commencement of this paragraph in which a receiver or a person authorised
under Part 7 of the Mental Health Act is acting on behalf of the landlord.
45

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
71

Medicines Act 1968 (c. 67)
14
In section 72 of the Medicines Act 1968 (c. 67) (pharmacist lacking
capacity)—
(a)
in subsection (1)(c), for the words from “a receiver” to “1959”
substitute “he becomes a person who lacks capacity (within the
5
meaning of the Mental Capacity Act 2004) to carry on the business”,
(b)
after subsection (1) insert—
“(1A)
In subsection (1)(c), the reference to a person who lacks
capacity to carry on the business is to a person—
(a)
in respect of whom there is a donee of an enduring
10
power of attorney or lasting power of attorney
(within the meaning of the Mental Capacity Act 2004),
or
(b)
for whom a deputy is appointed by the Court of
Protection,
15

and in relation to whom the donee or deputy has power for
the purposes of this Act.”,
(c)
in subsection (3)(d)—
(i)
for “receiver” substitute “deputy”, and
(ii)
after “guardian” insert “or from the date of registration of the
20
instrument appointing the donee”, and
(d)
in subsection (4)(c), for “receiver” substitute “donee, deputy”.
Family Law Reform Act 1969 (c. 46)
15
For section 21(4) of the Family Law Reform Act 1969 (c. 46) (consent required
for taking of bodily sample from person lacking capacity), substitute—
25
“(4)
A bodily sample may be taken from a person who lacks capacity
(within the meaning of the Mental Capacity Act 2004) to give his
consent, if consent is given by the court giving the direction under
section 20 or by—
(a)
a donee of an enduring power of attorney or lasting power of
30
attorney (within the meaning of that Act), or
(b)
a deputy appointed, or any other person authorised, by the
Court of Protection,

with power in that respect.”.
Local Authority Social Services Act 1970 (c. 42)
35
16    (1)
Schedule 1 to the Local Authority Social Services Act 1970 (c. 42)
(enactments conferring functions assigned to social services committee) is
amended as follows.
      (2)
In the entry for section 49 of the National Assistance Act 1948 (expenses of
local authority officer appointed for person who lacks capacity) for
40
“receiver” substitute “deputy”.
      (3)
At the end, insert—

“Mental Capacity Act 2004

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
72

  Section 37
Seeking advice from independent

consultee before providing

accommodation for person

lacking capacity.

  Section 47
Reports in proceedings.”.

5

Courts Act 1971 (c. 23)
17
In Part 1A of Schedule 2 to the Courts Act 1971 (c. 23) (office-holders eligible
for appointment as circuit judges), omit the reference to a Master of the
Court of Protection.
Local Government Act 1972 (c. 70)
10
18    (1)
Omit section 118 of the Local Government Act 1972 (c. 70) (payment of
pension etc. where recipient lacks capacity).
      (2)
Sub-paragraph (3) applies where, before the commencement of this
paragraph, a local authority has, in respect of a person referred to in that
section as “the patient”, made payments under that section—
15
(a)
to an institution or person having the care of the patient, or
(b)
in accordance with subsection (1)(a) or (b) of that section.
      (3)
The local authority may, in respect of the patient, continue to make
payments under that section to that institution or person, or in accordance
with subsection (1)(a) or (b) of that section, despite the repeal made by sub-
20
paragraph (1).
Matrimonial Causes Act 1973 (c. 18)
19
In section 40 of the Matrimonial Causes Act 1973 (c. 18) (payments to person
who lacks capacity) (which becomes subsection (1))—
(a)
for the words from “is incapable” to “affairs” substitute “(“P”) lacks
25
capacity (within the meaning of the Mental Capacity Act 2004) in
relation to the provisions of the order”,
(b)
for “that person under Part VIII of that Act” substitute “P under that
Act”,
(c)
for the words from “such persons” to the end substitute “such person
30
(“D”) as it may direct”, and
(d)
at the end insert—
“(2)
In carrying out any functions of his in relation to an order
made under subsection (1), D must act in P’s best interests
(within the meaning of that Act).”.
35
Juries Act 1974 (c. 23)
20
In Schedule 1 to the Juries Act 1974 (c. 23) (disqualification for jury service),
for paragraph 3 substitute—
“3
A person who lacks capacity, within the meaning of the Mental
Capacity Act 2004, to serve as a juror.”.
40

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
73

Consumer Credit Act 1974 (c. 39)
21
For section 37(1)(c) of the Consumer Credit Act 1974 (c. 39) (termination of
consumer credit licence if holder lacks capacity) substitute—
“(c)
becomes a person who lacks capacity (within the meaning of
the Mental Capacity Act 2004) to carry on the activities
5
covered by the licence.”.
Solicitors Act 1974 (c. 47)
22    (1)
The Solicitors Act 1974 (c. 47) is amended as follows.
      (2)
For section 12(1)(j) (application for practising certificate by solicitor lacking
capacity) substitute—
10
“(j)
while he lacks capacity (within the meaning of the Mental
Capacity Act 2004) to act as a solicitor and powers under
sections 15 to 20 or section 46 of that Act are exercisable in
relation to him;”.
      (3)
In section 62(4) (contentious business agreements made by clients) for
15
paragraphs (c) and (d) substitute—
“(c)
as a deputy for him appointed by the Court of Protection with
powers in relation to his property and affairs, or
(d)
as another person authorised under that Act to act on his
behalf.”.
20
      (4)
In paragraph 1(1) of Schedule 1 (circumstances in which Law Society may
intervene in solicitor’s practice), for paragraph (f) substitute—
“(f)
a solicitor lacks capacity (within the meaning of the Mental
Capacity Act 2004) to act as a solicitor and powers under
sections 15 to 20 or section 46 of that Act are exercisable in
25
relation to him;”.
Local Government (Miscellaneous Provisions) Act 1976 (c. 57)
23
In section 31 of the Local Government (Miscellaneous Provisions) Act 1976
(c. 57) (the title to which becomes “Indemnities for local authority officers
appointed as deputies or administrators”), for the words from “as a receiver”
30
to “1959” substitute “as a deputy for a person by the Court of Protection”.
Sale of Goods Act 1979 (c. 54)
24
In section 3(2) of the Sale of Goods Act 1979 (c. 54) (capacity to buy and sell)
the words “mental incapacity or” cease to have effect in England and Wales.
Limitation Act 1980 (c. 58)
35
25
In section 38 of the Limitation Act 1980 (c. 58) (interpretation) substitute—
(a)
in subsection (2) for “of unsound mind” substitute “lacks capacity
(within the meaning of the Mental Capacity Act 2004) to conduct
legal proceedings”, and
(b)
omit subsections (3) and (4).
40

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
74

Public Passenger Vehicles Act 1981 (c. 14)
26
In section 57(2)(c) of the Public Passenger Vehicles Act 1981 (c. 14)
(termination of public service vehicle licence if holder lacks capacity) for the
words from “becomes a patient” to “or” substitute “becomes a person who
lacks capacity (within the meaning of the Mental Capacity Act 2004) to use
5
a vehicle under the licence, or”.
Judicial Pensions Act 1981 (c. 20)
27
In Schedule 1 to the Judicial Pensions Act 1981 (c. 20) (pensions of Supreme
Court officers, etc.), in paragraph 1, omit the reference to a Master of the
Court of Protection except in the case of a person holding that office
10
immediately before the commencement of this paragraph or who had
previously retired from that office or died.
Supreme Court Act 1981 (c. 54)
28
In Schedule 2 to the Supreme Court Act 1981 (c. 54) (qualifications for
appointment to office in Supreme Court), omit paragraph 11 (Master of the
15
Court of Protection).
Mental Health Act 1983 (c. 20)
29    (1)
The Mental Health Act is amended as follows.
      (2)
In section 134(3) (cases where correspondence of detained patients may not
be withheld) for paragraph (b) substitute—
20
“(b)
any judge or officer of the Court of Protection, any of the
Court of Protection Visitors or any person asked by that
Court for a report under section 47 of the Mental Capacity
Act 2004 concerning the patient;”.
      (3)
In section 139 (protection for acts done in pursuance of 1983 Act), in
25
subsection (1), omit from “or in, or in pursuance” to “Part VII of this Act,”.
      (4)
Section 142 (payment of pension etc. where recipient lacks capacity) ceases
to have effect in England and Wales.
      (5)
Sub-paragraph (6) applies where, before the commencement of sub-
paragraph (4), an authority has, in respect of a person referred to in that
30
section as “the patient”, made payments under that section—
(a)
to an institution or person having the care of the patient, or
(b)
in accordance with subsection (2)(a) or (b) of that section.
      (6)
The authority may, in respect of the patient, continue to make payments
under that section to that institution or person, or in accordance with
35
subsection (2)(a) or (b) of that section, despite the amendment made by sub-
paragraph (4).
      (7)
In section 145(1) (interpretation), in the definition of “patient”, omit “(except
in Part VII of this Act)”.
      (8)
In section 146 (provisions having effect in Scotland), omit from “104(4)” to
40
“section),”.
      (9)
In section 147 (provisions having effect in Northern Ireland), omit from
“104(4)” to “section),”.

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
75

Administration of Justice Act 1985 (c. 61)
30
In section 18(3) of the Administration of Justice Act 1985 (c. 61) (licensed
conveyancer who lacks capacity), for the words from “that person” to the
end substitute “he becomes a person who lacks capacity (within the meaning
of the Mental Capacity Act 2004) to practise as a licensed conveyancer.”.
5
Insolvency Act 1986 (c. 45)
31    (1)
The Insolvency Act 1986 (c. 45) is amended as follows.
      (2)
In section 389A (people not authorised to act as nominee or supervisor in
voluntary arrangement), in subsection (3)—
(a)
omit the “or” immediately after paragraph (b),
10
(b)
in paragraph (c), omit “Part VII of the Mental Health Act 1983 or”,
and
(c)
after that paragraph, insert “, or
(d)
he lacks capacity (within the meaning of the Mental
Capacity Act 2004) to act as nominee or supervisor”.
15
      (3)
In section 390 (people not qualified to be insolvency practitioners), in
subsection (4)—
(a)
omit the “or” immediately after paragraph (b),
(b)
in paragraph (c), omit “Part VII of the Mental Health Act 1983 or”,
and
20
(c)
after that paragraph, insert “, or
(d)
he lacks capacity (within the meaning of the Mental
Capacity Act 2004) to act as an insolvency
practitioner.”.
Building Societies Act 1986 (c. 53)
25
32
In section 102D(9) of the Building Societies Act 1986 (c. 53) (references to a
person holding an account on trust for another)—
(a)
in paragraph (a), for “Part VII of the Mental Health Act 1983”
substitute “the Mental Capacity Act 2004”, and
(b)
for paragraph (b), substitute—
30
“(b)
to an attorney holding an account for another person
under—
(i)
an enduring power of attorney or lasting
power of attorney registered under the Mental
Capacity Act 2004, or
35
(ii)
an enduring power registered under the
Enduring Powers of Attorney (Northern
Ireland) Order 1987;”.
Public Trustee and Administration of Funds Act 1986 (c. 57)
33
In section 3 of the Public Trustee and Administration of Funds Act 1986
40
(c. 57) (functions of the Public Trustee)—
(a)
for subsections (1) to (5) substitute—
“(1)
The Public Trustee may exercise the functions of a deputy
appointed by the Court of Protection.”,

Mental Capacity Bill
Schedule 6 — Minor and consequential amendments
76

(b)
in subsection (6), for “the 1906 Act” substitute “the Public Trustee Act
1906”, and
(c)
omit subsection (7).
Courts and Legal Services Act 1990 (c. 41)
34    (1)
The Courts and Legal Services Act 1990 (c. 41) is amended as follows.
5
      (2)
In Schedule 11 (judges etc. barred from legal practice), for the reference to a
Master of the Court of Protection substitute a reference to each of the
following—
(a)
Senior Judge of the Court of Protection,
(b)
President of the Court of Protection,
10
(c)
Vice-President of the Court of Protection.
      (3)
In paragraph 5(3) of Schedule 14 (exercise of powers of intervention in
registered foreign lawyer’s practice), for paragraph (f) substitute—
“(f)
he lacks capacity (within the meaning of the Mental
Capacity Act 2004) to act as a registered foreign lawyer and
15
powers under sections 15 to 20 or section 46 are exercisable
in relation to him;”.
Child Support Act 1991 (c. 48)
35
In section 50 of the Child Support Act 1991 (c. 48) (unauthorised disclosure
of information)—
20
(a)
in subsection (8)—
(i)
immediately after paragraph (a), insert “or”,
(ii)
omit paragraphs (b) and (d) and the “or” immediately after
paragraph (c), and
(iii)
for “, receiver, custodian or appointee” substitute “or
25
custodian”, and
(b)
after that subsection, insert—
“(9)
Where the person to whom the information relates lacks
capacity (within the meaning of the Mental Capacity Act
2004) to consent to its disclosure, the appropriate person is—
30
(a)
a donee of an enduring power of attorney or lasting
power of attorney (within the meaning of that Act), or
(b)
a deputy appointed for him, or any other person
authorised, by the Court of Protection,

with power in that respect.”.
35
Social Security Administration Act 1992 (c. 5)
36
In section 123 of the Social Security Administration Act 1992 (c. 5)
(unauthorised disclosure of information)—
(a)
in subsection (10), omit—
(i)
in paragraph (b), “a receiver appointed under section 99 of
40
the Mental Health Act 1983 or”,
(ii)
in paragraph (d)(i), “sub-paragraph (a) of rule 41(1) of the
Court of Protection Rules 1984 or”,
(iii)
in paragraph (d)(ii), “a receiver ad interim appointed under
sub-paragraph (b) of the said rule 41(1) or”, and
45