House of Commons - Explanatory Note
Mental Capacity Bill - continued          House of Commons

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Clause 28: Mental Health Act matters

85.     This deals with the question of people who are detained for psychiatric treatment pursuant to the Mental Health Act 1983. The clause ensures that the Bill does not apply to any treatment for mental disorder which is being given in accordance with the rules about compulsory treatment set out in Part 4 of the 1983 Act. The specific statutory safeguards which the 1983 Act gives in relation to compulsory psychiatric treatment must always be afforded to those patients to whom it applies.

Clause 29: Voting rights

86.     This excludes decisions about voting from the remit of the Bill.


Clause 30: Research

87.     This clause, with clauses 31-33, make provision for intrusive research to be lawfully carried out on, or in relation to P, where the research is part of a research project approved by an appropriate authority and it is carried out in accordance with the conditions set out in clauses 32 and 33. The provisions are based on long-standing international consensus, for example, laid down by the World Medical Association and the Council of Europe Convention on Human Rights and Biomedicine. Consideration has also been given to the Law Commission draft Bill on Mental Incapacity and to the Adults with Incapacity (Scotland) Act 2000.

88.     The Bill relates to research - "intrusive research" - that would normally need consent if it involved an adult with capacity. Clinical trials that are currently regulated under the Medicines for Human Use (Clinical Trials) Regulations 2004 (SI 2004/1031) (or Regulations succeeding or amending them) are excluded from the Bill because the Clinical Trials Regulations already make provision for trials involving participants who lack capacity. Research on anonymised medical data or tissue is also not included, but may be subject to controls under the Data Protection Act 1984 or the Human Tissue Act 2004.

89.     The Secretary of State must specify an appropriate authority for approving research projects. This authority is likely to be a Research Ethics Committee (REC) and Regulations will specify this.

Clause 31: Requirements for approval

90.     This clause sets out the requirements that the appropriate authority - such as the REC - must satisfy itself of before approving a research project involving P.

91.     Subsection (2) requires that the research must be connected with a condition that affects P and is attributable to the impairment of or disturbance in the functioning of P's mind or brain. This limits the sort of research projects that P may be involved in but will include research into the effects of the impairment on P's health and day-to-day life as well as into the causes of the impairment. Subsection 3 requires that there is no alternative to the involvement of P in the research, that is, it could not involve adults who have capacity.

92.     Subsections (4) & (5) deal with the anticipated benefits and risks of the research. There are two alternatives; either that the research has the potential to benefit P without imposing a burden disproportionate to that benefit (this type of research is sometimes called "therapeutic research"), or that the research is to provide knowledge of the causes of P's condition, its treatment or the care of people with the same or similar condition. In relation to this latter category of research the risk to P must be negligible and the research must not interfere with P's freedom of action or privacy in a significant way or be unduly invasive or restrictive. This latter category of research might include indirect research on medical notes, or on human tissue already taken for other purposes. It may also include interviews or questionnaires about health- or social-care with P or his carers, or limited observation of P.

Clause 32: Consulting carers etc

93.     Before any decision is taken to involve a particular person in approved research, the researcher "R" must take reasonable steps to identify a person close to P (this could include an attorney or deputy but not a paid carer) who is prepared to be consulted about P's involvement in the research (subsection (2)). If there is no such person, then R must nominate a person independent of the research in accordance with guidance issued by the Secretary of State.

94.     Subsection (4) requires R to give the person consulted information about the research and to ask him or her for advice as to whether P should take part in the research and what, in their opinion, P's wishes and feelings would be about taking part in the research. If at any time the person consulted advises R that in his opinion P's wishes and feelings would be likely to lead him to decline to take part in the project then R must ensure that P does not take part in the project, or if it is already underway must ensure P is withdrawn from it unless an application is made under subsection (7) (subsection (5)).

95.     Subsection (7) & (8) enable the court to intervene in cases where R wants to involve P despite the views of the person consulted because the research has the potential to benefit P. The court must be satisfied that the research would potentially benefit to P without imposing a disproportionate burden on him.

96.     Subsections (9)-(10) allow for urgent cases where there is insufficient opportunity to consult. R may proceed if he has the agreement of a doctor who is not concerned with P's treatment or care or other prior approval. However subsection (11) makes it clear that R may only rely on subsection (10) only where there is an urgent need to act. Examples of this type of research may involve action by a paramedic or doctor to make measurements in the first few minutes following a serious head injury or stroke. These arrangements are similar to those for Clinical Trials.

Clause 33: Additional safeguards

97.     This clause deals with situations where P objects or has made an advance decision. P must also be withdrawn from the project without delay if he indicates that he wishes to be withdrawn from it or if the person conducting the research has reasonable grounds for believing that any of the requirements for approval of the project as set out at subsections (2) to (6) of clause 31 are no longer met.

Independent consultee service

Clause 34: Appointment of independent consultees

98. Clauses 34-39 create a new scheme designed to provide the input of an independent consultee where certain decisions need to be taken for particularly vulnerable people who lack capacity. This may include older people with dementia who have lost contact with all friends and family, or people with severe learning disabilities or long term mental health problems who have been in residential institutions for long periods and lack outside contacts. Such people will be provided with support when decisions are to be made about serious medical treatment or significant changes of residence provided by public bodies. The clauses are also intended to help address concerns raised about safeguards for patients with a mental disorder, who lack capacity and are being treated in hospital. The original intention was in part to help address the concerns raised by R v Bournewood Community Mental Health NHS Trust ex parte L [1999] 1AC 458. Following the recent judgment of the European Court of Human Rights in that case (H.L v United Kingdom, 5 October 2004, application no. 45508/99), the Department is considering what additional procedural safeguards (if any) are needed to protect patients against arbitrary deprivation of liberty - and the appropriate vehicle for any legislation necessary to provide those safeguards. The clauses supplement the powers and duties conferred elsewhere in the Bill.

99. Clause 34 places a duty on the "appropriate authority" to make arrangements for

the provision of a new independent consultee ("IC") service. The duties placed on the "appropriate authority" are conferred for England on the Secretary of State and for Wales on the National Assembly for Wales.

100. Subsection (2) provides for the IC service to be provided through NHS and local authority arrangements. Subsection (3) allows the appropriate Minister to make regulations setting out how the IC will be appointed and what functions they will have. This will ensure that an individual will need to meet common standards in order to be approved as an independent consultee. Subsection (4) provides that, as far as practicable, the IC should be independent of the person who is making the decision in which they are involved. Subsection (6) stipulates that an IC must be able to meet the person concerned in private and see relevant records, including access to health or social services records as well as care home records. This is to enable the IC to be able properly to perform their function of advising on the best interests of the person.

Clause 35: Duty to seek advice in connection with serious medical treatment

101. This applies where "serious medical treatment" is to be provided or arranged by the NHS for a person who lacks capacity, and there is no-one for the treatment-provider to discuss it with. If there is neither a person from the list in clause 38 (such as an attorney under an LPA or deputy), nor a non-professional carer or friend for the purposes of clause 4(6)(b), then an independent consultee is triggered.

102. The role of the independent consultee will be both to represent P (the person who lacks capacity) where this is possible and to form a view as to what P's best interests might be. In particular their role will be to give input other consultees would usually be able to provide in accordance with clause 4(6), as to the person's wishes, feelings, beliefs, values and other factors. These views would then be put to the decision maker who would be required to take them into account.

103. Subsection (2) provides that where P's treatment is regulated under Part 4 of the Mental Health Act 1983, the independent consultee does not need to be consulted. That Act already contains its own safeguards.

104. Subsection (4) makes provision in relation to urgent treatment. Subsection (6) provides that the types of "serious medical treatment" to be covered will be set out in regulations. Subsection (7) provides that regulations will also define the particular NHS bodies who will become subject to the duties. The intention is that this will cover the bodies responsible for direct provision or funding of treatment as appropriate.

Clause 36: Duty of NHS body to seek advice before arranging accommodation

105. This applies to long-stay (28 days or more) accommodation in a hospital or a care home, or a move between such accommodation, where this accommodation is provided or arranged by the NHS. The IC is to be consulted where such accommodation is being proposed and a person lacks capacity to agree to the arrangements and there is no other person to discuss it with. Again the IC is both to represent P and to advise on the person's best interests. If the IC gives advice on P's best interests and wishes and feelings, this must be taken into account by the NHS body.

106. Subsection (2) provides that where P is to be detained in hospital or otherwise required to live in the accommodation in question under the Mental Health Act 1983, the independent consultee does not need to be consulted, as that Act already contains its own safeguards. Subsection (3) makes provision in relation to urgent placements.

107. Subsection (4) is intended to ensure that an IC is involved in relation to people whose residence is initially intended to be less than 28 days/8 weeks if the period is later extended beyond the applicable period. Subsection (9) clarifies that the applicable period is 28 days in relation to accommodation in hospital and 8 weeks in relation to accommodation in a care home.

Clause 37: Duty of local authority to seek advice before arranging accommodation

108. This applies to long-stay accommodation (8 weeks or more) arranged by a local authority, or a change in such accommodation. Under subsection (2), residential accommodation provided in accordance with section 21 of the National Assistance Act 1948 may be in care homes, nursing homes, ordinary and sheltered housing, housing association or other registered social housing, or in private sector housing provided by a local authority. Residential accommodation provided under section 29 of the National Assistance Act 1948 includes hostel accommodation. The IC safeguard will also apply to people accommodated following discharge under s.117 of the Mental Health Act 1983.

109. The IC is to be consulted where a person lacks capacity to agree to the arrangements and there is no other person to discuss it with. Again the IC is both to represent P and to advise on the person's best interests. If the IC gives advice on P's best interests and wishes and feelings, this must be taken into account by the local authority.

110. Subsection (3) provides that the independent consultee does not need to be consulted where P is to be required under the Mental Health Act 1983 to live in the accommodation in question (for example, as a requirement of conditional discharge.) Subsection (4) makes provision in relation to urgent placements.

111. Subsection (5) is intended to ensure that an IC is involved in relation to people whose residence is initially intended to be less than 8 weeks if the period is later extended.

Clause 38: Exceptions

112. This makes it clear that the IC scheme does not apply when P already has a suitable person who can speak with the provider of treatment or accommodation i.e. a person chosen by P in advance, an attorney under an EPA or LPA, or a deputy. This supplements clauses 35(1)(b), 36(1) and 37(1), which generally trigger the involvement of the independent consultee when there is no-one appropriate to consult about P's best interests, other than a paid or professional carer. This clause would override the earlier clauses if there were any conflict (for example, if P had validly appointed a professional carer as attorney).

Clause 39: Power to adjust role of independent consultee service

113. This provides that the IC scheme can be extended, by regulations made by the Secretary of State or National Assembly for Wales, to other sets of circumstances. The intention is for the Government to consult further on additional situations where people who lack capacity may benefit from an independent consultee.

Miscellaneous and supplementary

Clause 40: Codes of practice

114. This provides for the Lord Chancellor to make codes of practice to supplement the Bill. The codes of practice must address issues about assessing capacity, acting under clause 5 (acts in connection with care or treatment), LPAs, deputies, advance decisions to refuse treatment and other matters as the Lord Chancellor thinks fit. The Lord Chancellor will have powers to revise any codes and delegate their preparation. Attorneys, deputies, professionals and paid workers acting on behalf of adults who lack capacity will be under an obligation to have regard to any relevant code. Any codes of practice issued will be allowed to be used as evidence in court proceedings and could be taken into account by a court or tribunal.

Clause 41: Codes of practice: procedure

115. This sets out the procedure for issuing and revising any codes of practice. The Lord Chancellor will have to consult with the National Assembly for Wales and other appropriate persons before preparing or revising a code. Draft codes will have to be laid before both Houses of Parliament for 40 days. They may then be issued, provided that neither House has resolved to reject the draft. The Lord Chancellor must arrange for the code to be brought to the attention of people who may need to know about it.

Clause 42: Ill-treatment or neglect

116. This creates a new offence of ill-treatment or wilful neglect of a person lacking capacity. Subsection (1) outlines the people to whom this clause applies, i.e. anyone responsible for the care of a person lacking capacity, donees of LPAs, and deputies appointed by the court. Subsection (2) outlines the penalties attached to committing an offence under this clause.



The Court of Protection

Clause 43: The Court of Protection

117. This outlines the nature of the new Court of Protection. It establishes a new superior court of record called the Court of Protection which will be able to sit anywhere in England and Wales. It is intended that the Court of Protection will have a regional presence but the court will have a central office and registry as designated by the Lord Chancellor. Additional registries (being High Court district registries or county courts) may also be designated. Subsection (5) abolishes the current Court of Protection which is an office of the Supreme Court and which operates as the main forum for financial decision-making on behalf of adults who lack capacity (and financial decision-making for minors who are considered likely to lack capacity when they reach adulthood). The current Court of Protection can only deal with "property and affairs". It has no jurisdiction in relation to personal welfare (including health care) matters. Disputes or difficulties over welfare matters currently have to be referred to the High Court for the exercise of its inherent jurisdiction. It is intended that the creation of the new Court of Protection will remove the need for applicants to resort to the inherent jurisdiction of the High Court. The new court will have a comprehensive jurisdiction in relation to welfare and financial matters.

Clause 44: The judges of the Court of Protection

118. The Lord Chancellor or an appropriate person acting on his behalf will nominate judges to exercise the jurisdiction of the Court of Protection. Subsection (2) sets out which judges may be nominated. Subsection (3) gives the Lord Chancellor the power to appoint one of the senior nominated judges to be designated President of the Court of Protection and another to be Vice-President of the Court of Protection. Subsection (4) gives the Lord Chancellor the power to appoint a judge to be Senior Judge of the Court of Protection, with various administrative functions.

Supplementary powers

Clause 45: General powers and effect of orders etc.

119. Subsection (1) gives the Court of Protection the same powers as the High Court, for example in relation to witnesses, contempt and enforcement. The clause also provides for the effectiveness of orders and office copies of orders made by the new court.

Clause 46: Interim orders and directions

120. This allows the court to make interim orders even if evidence as to lack of capacity is not yet available, where there is reason for the court to believe that the person lacks capacity in respect of a particular matter and it is in his best interests for the court to act without delay.

Clause 47: Power to call for reports

121. This makes provision for reports to assist the court in determining a case. Such reports can be commissioned from the Public Guardian, local authorities, NHS bodies or Court of Protection Visitors. The Public Guardian is a new statutory official (see clause 55) and the Court of Protection Visitors replace current "Lord Chancellor's Visitors" (see section 102 of the Mental Health Act 1983and clause 57). Local authority staff or NHS staff may already be providing services to P and be able to report to the court on the basis of their existing involvement.

122. Subsections (7) to (9) allow the Public Guardian or Court of Protection Visitor who is reporting to the court to have access to health or social services records relating to P and interview him in private. Where a Court of Protection Visitor is a Special Visitor (e.g. a registered medical practitioner or someone with other suitable qualifications or training) he may, on the directions of the court, carry out private medical, psychiatric or psychological examinations.

Practice and procedure

Clause 48: Applications to the Court of Protection

123. This provides that persons listed in subsection (1) can apply to the Court of Protection as of right while others generally will be required to obtain permission from the court. Court of Protection Rules can, however, provide that certain types of application will not require permission. The factors that the court must have regard to when considering whether to grant permission are listed in subsection (3) and are designed to ensure that any proposed application will promote the person's interests, rather than causing unnecessary distress or difficulty for him.

Clause 49: Court of Protection Rules

124. The specialist jurisdiction of the new court calls for specialist rules of court, which will be made by the Lord Chancellor. Subsection (2) lists different matters in relation to which rules may be made and subsection (4) permits different provisions to be made for different matters.

Clause 50: Practice directions

125. This gives the power to make practice directions. Practice directions are directions about courts' practices and procedures, issued for the assistance and guidance of litigants. They often support and add detail to "rules of court". Practice Directions will have to be made by the President with the approval of the Lord Chancellor or by another person (for example, the Vice-President) with the approval of the President and the Lord Chancellor. Subsection (3) clarifies that the Lord Chancellor need not approve any directions giving guidance about the law or the making of judicial decisions. Clause 49(3) enables Court of Protection Rules, instead of providing for any matter, to refer to provision made or to be made by these directions. The intention is to make rules accompanied by practice directions, on the model of the Civil Procedure Rules 1998.

Clause 51: Rights of appeal

126. This deals with appeals from the Court of Protection and will be supplemented by Court of Protection Rules. Subject to such rules, an appeal will lie from any decision of the court to the Court of Appeal. However, the Court of Protection will comprise a range of judges at different levels of the judicial hierarchy. It is therefore intended to make provision by rules of court, by virtue of subsection (2), so that decisions made at a lower level of the Court of Protection are appealed to a higher judge within the Court of Protection. Rules may make further detailed provision as to permission to appeal and may provide that where an appeal has already been made to a higher judge of the Court of Protection no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that the appeal would raise an important point of principle or practice or there is some other compelling reason to hear the appeal. This matches the "2nd appeal" test in the Civil Procedures Rules 1998, Rule 52.13.

Fees and Costs

Clause 52: Fees

127. This deals with the setting of fees chargeable by the Court of Protection which will be by order of the Lord Chancellor with the consent of the Treasury. The order will be subject to the negative resolution procedure (see clause 61(2)). The order may set the level of fees, any exemptions from and reductions in the fees and any partial or whole remission of fees. Prior to making the order the Lord Chancellor must consult with the President, Vice-President and Senior Judge of the Court of Protection. The Lord Chancellor must take reasonably practicable steps to give out information about fees. Similar provision is made about other court fees in section 92 of the Courts Act 2003.

Clause 53: Costs

128. This deals with the costs of Court of Protection proceedings and will be supplemented by Court of Protection Rules. Subject to such rules, the court will have discretion to make costs orders including wasted costs orders against legal or other representatives. It seeks to put the new court in the same position as the ordinary civil courts.

Clause 54: Fees and costs: supplementary

129. This clarifies that rules can deal with the way in which, and funds from which, fees and costs are to be paid and make provision for them to be charged against the estate of the person concerned. It is modelled on the Mental Health Act 1983, section 106.

The Public Guardian

Clause 55: The Public Guardian

130. This provides for a new public official, the Public Guardian, to be appointed by the Lord Chancellor. The Public Guardian will have staff and officers so that he can discharge his duties.

Clause 56: Functions of the Public Guardian

131. This outlines the role of the Public Guardian and may be supplemented by regulations made by the Lord Chancellor. It is intended that regulations will set out in more detail how the Public Guardian will exercise his administrative duties in connection with court-ordered security and reports. The regulations will also deal with fees and the sources from which they may be met.

132. The functions of the Public Guardian are set out in subsection (1). They include establishing and maintaining registers of lasting powers of attorney and orders appointing deputies and supervising deputies appointed by the court. He may also direct Court of Protection Visitors to visit donees of lasting powers of attorneys, deputies or persons granting powers of attorney or for whom a deputy is appointed. He may deal with complaints and concerns expressed to him about how an attorney or deputy is exercising his powers.

133. Subsection (2) provides that certain functions may be discharged in co-operation with any other person who has functions in relation to the care or treatment of the person to whom the power of attorney or appointment of a deputy relates. It is intended that the Public Guardian will work closely with organisations such as local authorities and NHS bodies.

134. Subsections (5)-(6) allow the Public Guardian to examine and take copies of relevant health or social services records, and also interview P in private. This is to ensure that the Public Guardian will be able to carry out his functions. The Public Guardian has similar rights when reporting to the Court of Protection (see clause 47(7)-(8)). Court of Protection Visitors are given similar rights (see clause 57(5)-(6)

Court of Protection Visitors

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Prepared: 24 November 2004