Amendment Paper as at
Tuesday 14th December 2004

CONSIDERATION OF BILL

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New Amendments handed in are marked thus *

MENTAL CAPACITY BILL, AS AMENDED

NEW CLAUSES RELATING TO LIFE-SUSTAINING TREATMENT
AND BEST INTERESTS

Excluded decisions

   

Mr Iain Duncan Smith
Jim Dobbin
Mrs Claire Curtis-Thomas
Ann Winterton
Mr Paul Burstow
Dr Brian Iddon

Mr Andrew Hunter	Mr Michael Mates	Mr William Cash
Mr Peter Luff	Mr Mark Field	Mr Paul Goodman
Mr David Wilshire	Mr Peter Lilley	Mr David Atkinson
Mr James Gray	Frank Cook	Mr Nigel Evans
Bob Spink	Mr Andrew Robathan	Derek Conway
Mr Terry Lewis	Mr Alan Meale	Sir Teddy Taylor
Mr Quentin Davies	Mr Joe Benton	Mr Tom Clarke
Mr Julian Brazier

NC1

To move the following Clause:—

    '(1)   Nothing in this Act permits, authorises or gives validity to any decision made with a purpose of bringing about the death of the person about whose welfare the decision is made.

    (2)   The provisions of subsection (1) do not apply to—

(a)	a decision that a life-sustaining treatment is not to be carried out or continued because it would be unreasonably burdensome to the person; or

(b)	the power of the court to make such order concerning the continuance of life-sustaining treatment as it considers to be in the best interests of a person whom it has determined to be irreversibly unconscious.'.

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Excluded decisions (No. 2)

   

Mr Iain Duncan Smith
Jim Dobbin
Mrs Claire Curtis-Thomas
Ann Winterton
Mr Paul Burstow
Dr Brian Iddon

Mr Andrew Hunter	Mr Michael Mates	Mr William Cash
Mr Peter Luff	Mr Mark Field	Mr Paul Goodman
Mr David Wilshire	Mr Peter Lilley	Mr David Atkinson
Mr James Gray	Frank Cook	Mr Nigel Evans
Bob Spink	Mr Andrew Robathan	Derek Conway
Mr Terry Lewis	Mr Alan Meale	Sir Teddy Taylor
Mr Quentin Davies	Mr Joe Benton	Mr Tom Clarke
Mr Julian Brazier

NC2

To move the following Clause:—

    '(1)   Nothing in this Act authorises the withdrawal of palliative care.

    (2)   "palliative care" includes the provision of—

(a)	relief of pain, suffering and discomfort;

(b)	nutrition and hydration, however provided.

    (3)   The provisions of subsection (1) do not apply to—

(a)	a decision that nutrition and hydration is to be discontinued because it would be unreasonably burdensome to the person; or

(b)	the power of the court to make such order concerning the continuance of life sustaining treatment as it considers to be in the best interests of a person whom it has determined to be irreversibly unconscious.'.

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Palliative care

   

Mr George Howarth
Dr Howard Stoate
Mr Stephen Pound

NC4

To move the following Clause:—

       'Nothing in this Act authorises the withdrawal of palliative care.'.

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NEW CLAUSES RELATING TO RESEARCH AND TO INDEPENDENT
CONSULTEES

Non-therapeutic procedures

   

Mr Kevin Barron

NC3

To move the following Clause:—

       'The Secretary of State may by order applying either generally or in cases of a specified description authorise the carrying out of any medical or surgical procedure in relation to a person without capacity to consent which, although not carried out for his benefit, will in the opinion of the Secretary of State not cause him significant harm and be of significant benefit to others.'.

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Appointment of Independent Advocates (No. 2)

   

Mr Paul Burstow

NC5

To move the following Clause:—

    '(1)   The appropriate authority must arrange, to such an extent as he considers necessary, to maintain the principles set out in section 1 of the Act, for independent advocates to be available to assist a person P when another person D is considering doing an act, or making a decision to do an act.

    (2)   The assistance available under the arrangements must include—

(a)	assistance to permit an encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him;

(b)	assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider are relevant to the decision or proposed action if he were able to do so;

(c)	assistance to maintain the principles set out in section 1 of this Act.

    (3)   The appropriate authority may make regulations—

(a)	as to the appointment or recognition of independent advocates for the purpose of this Act;

(b)	as to the functions of independent advocates for the purposes of this Act;

(c)	that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;

(d)	for the appointment of a person as an independent advocate 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 support 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 relation to, persons carrying out functions in accordance with the arrangements.

    (6)   The appropriate authority may make regulations as to the specified circumstances in which independent advocacy must be made available which shall include considerations of a major change in a person's accommodation and/or support arrangements where the accommodation or support is to be paid for in whole or in part from public funds, or would be but for the fact the person's resources exceed those set in regulations under section 22 of the National Assistance Act 1948.

    (7)   A major change for the purpose of subsection (6) means any change to—

(a)	accommodation for a continuous period intended to or likely to exceed 28 days or

(b)	any new contractual arrangements for providing support, for a person who lacks capacity to agree to the changes, where accommodation or support is to be paid for in whole or in part from public funds, or

(c)	where the arrangements need to be made as a matter of urgency.

    (8)   In this section "the appropriate authority" means—

(a)	in relation to the provision of the service of independent advocates in England, the Secretary of State, and

(b)	in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'.

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REMAINING NEW CLAUSES

Advance statements requesting care or treatment: general

   

Mr Paul Burstow

NC6

To move the following Clause:—

    '(1)   In this section and sections 28 and 29, "advance statement" means an advance request made by a person (P), after he has reached 18 and when he has capacity to do so, detailing his preferences with regard to care or treatment so that if at a later time and in such circumstances as he may specify—

(a)	care or treatment is proposed to be carried out or continued, by a relevant authority, or where he would, were he not mentally incapacitated, be in a position to request a particular type of care or treatment, from a relevant authority, which he has specified in his advance statement, and

(b)	at that time he lacks capacity to

(i)	request care or treatment specified in his advance statement, or

(ii)	consent to the carrying out or continuation of care or treatment,

       the care or treatment which he has specified is to be carried out or continued by a relevant authority, if at that time, the request is reasonable in all the circumstances of the case.

    (2)   For the purposes of subsection (1)(a), a decision may be regarded as specifying a type of care or treatment, or circumstances even though expressed in layman's terms.

    (3)   For the purpose of subsection (1) a "relevant authority" means either:

(a)	a local authority exercising functions under section 47 of the National Health Service and Community Care Act 1990, or

(b)	a local housing authority within the meaning of the Housing Act 1985,

(c)	a Health Authority, Health Board, Special Health Authority, Primary Care Trust or National Health Service trust, or

(d)	any body providing care or treatment in a professional capacity or for remuneration.

    (4)   An advance statement shall normally be recorded in writing and witnessed by a third party.

    (5)   P may withdraw or alter an advance statement of any time when he has capacity to do so.'.

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Validity and applicability of advance statements

   

Mr Paul Burstow

NC7

To move the following Clause:—

    '(1)   An advance statement does not affect the liability which a person may incur for carrying out continuing care or treatment in relation to P unless the statement is at the material time—

(a)	valid, and

(b)	applicable to the care or treatment.

    (2)   An advance statement is not valid if P—

(a)	has withdrawn the statement of a time when he had capacity to do so,

(b)	has, under a lasting power of attorney created after the advance statement was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the care or treatment to which the advance statement relates, or

(c)	has done anything else clearly inconsistent with the advance statement remaining his fixed decision,

(d)	has requested care or treatment which is not reasonable in all the circumstances of the case.

    (3)   An advance statement is not applicable to the care or treatment in question if at the material time P has capacity to give or refuse consent to it.

    (4)   An advance statement is not applicable to care or treatment in question if—

(a)	that care or treatment is not the care or treatment specified in the advance statement,

(b)	any circumstances specified in the advance statement are absent, or

(c)	there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance statement and which would have affected his statement had he anticipated them.

    (5)   The existence of any lasting power of attorney other than one of a description mentioned in subsection (2)(b) does not prevent the advance statement from being regarded as valid and applicable.'.

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Prepared 14 Dec 2004