05101.1-7

House of Commons

Session 2004 - 05
Internet Publications
Other Bills before Parliament

LORDS amendments to the
Mental Capacity Bill
[The page and line references are to HL Bill 13, the bill as first printed for the Lords.]
Clause 2
1
Page 2, line 8, at end insert—

“( )
A lack of capacity cannot be established merely by reference to—

(a)
a person’s age or appearance, or

(b)
a condition of his, or an aspect of his behaviour, which might lead

others to make unjustified assumptions about his capacity.”
Clause 3
2
Page 2, line 27, leave out “a general” and insert “an”
Clause 4
3
Page 2, line 39, leave out from “must” to “take” in line 41 and insert “not make it

merely on the basis of—

(a)
the person’s age or appearance, or

(b)
a condition of his, or an aspect of his behaviour, which might lead

others to make unjustified assumptions about what might be in his

best interests.

(2)
The person making the determination must consider all the relevant

circumstances and, in particular,”
4
Page 3, line 8, leave out subsection (5) and insert—

“(5)
Where the determination relates to life-sustaining treatment he must not,

in considering whether the treatment is in the best interests of the person

concerned, be motivated by a desire to bring about his death.”
5
Page 3, line 11, after “feelings”, insert “(and, in particular, any relevant written

statement made by him when he had capacity)”
6
Page 3, line 35, leave out “his”

Bill 101 53/4

(  2  )

Clause 6
7
Page 4, line 21, at end insert—

“( )
But D does more than merely restrain P if he deprives P of his liberty within

the meaning of Article 5(1) of the Human Rights Convention (whether or

not D is a public authority).”
Clause 9
8
Page 5, line 30, leave out “section” and insert “sections 1 (the principles) and”
Clause 10
9
Page 6, line 2, at end insert “, or

(c)
jointly in respect of some matters and jointly and severally in

respect of others”
10
Page 6, line 3, leave out “If” and insert “To the extent to which”
Clause 11
11
Page 6, line 36, at end insert—

“( )
But the donee does more than merely restrain P if he deprives P of his

liberty within the meaning of Article 5(1) of the Human Rights

Convention.”
Clause 13
12
Page 8, line 9, after “severally” insert “in respect of any matter”
13
Page 8, line 17, after first “power” insert “in respect of any matter”
Clause 16
14
Page 9, line 31, leave out “section” and insert “sections 1 (the principles) and”
15
Page 9, line 40, leave out from “powers” to end and insert “or impose on him such

duties, as it thinks necessary or expedient for giving effect to, or otherwise in

connection with,”
Clause 19
16
Page 11, line 19, at end insert “, or

(c)
jointly in respect of some matters and jointly and severally in

respect of others”
Clause 20
17
Page 12, line 20, leave out from “P” to end of line 23
18
Page 12, line 25, leave out “section” and insert “sections 1 (the principles) and”
19
Page 12, line 41, at end insert—

(  3  )

“(14)
But a deputy does more than merely restrain P if he deprives P of his liberty

within the meaning of Article 5(1) of the Human Rights Convention

(whether or not the deputy is a public authority).”
Clause 22
20
Page 13, line 17, after “whether” insert “one or more of”
Clause 23
21
Page 13, line 42, at end insert “or an instrument purporting to create one”
Clause 24
22
Page 14, line 24, leave out “In this section and sections 25 and 26,”
23
Page 14, line 36, at end insert—

“(4)
A withdrawal (including a partial withdrawal) need not be in writing.

(5)
An alteration of an advance decision need not be in writing (unless section

25(5) applies in relation to the decision resulting from the alteration).”
Clause 25
24
Page 15, line 16, leave out subsection (5) and insert—

“(5)
An advance decision is not applicable to life-sustaining treatment unless—

(a)
the decision is verified by a statement by P to the effect that it is to

apply to that treatment even if life is at risk, and

(b)
the decision and statement comply with subsection (5A).

(5A)
A decision or statement complies with this subsection only if—

(a)
it is in writing,

(b)
it is signed by P or by another person in P’s presence and by P’s

direction,

(c)
the signature is made or acknowledged by P in the presence of a

witness, and

(d)
the witness signs it, or acknowledges his signature, in P’s

presence.”
Clause 30
25
Page 17, line 16, leave out “Secretary of State” and insert “appropriate authority”
26
Page 17, line 24, at end insert—

“(6)
In this section, section 32 and section (Loss of capacity during research project),

“appropriate authority” means—

(a)
in relation to the carrying out of research in England, the Secretary

of State, and

(b)
in relation to the carrying out of research in Wales, the National

Assembly for Wales.”

(  4  )

Clause 31
27
Page 17, line 30, leave out subsection (2) and insert—

“(2)
The research must be connected with—

(a)
an impairing condition affecting P, or

(b)
its treatment.

(2A)
“Impairing condition” means a condition which is (or may be) attributable

to, or which causes or contributes to (or may cause or contribute to), the

impairment of, or disturbance in the functioning of, the mind or brain.”
28
Page 17, line 34, leave out from “that” to end of line 36 and insert “research of

comparable effectiveness cannot be carried out if the project has to be confined to,

or relate only to, persons who have capacity to consent to taking part in it”
Clause 32
29
Page 18, line 19, leave out “Secretary of State” and insert “appropriate authority”
30
Page 19, line 5, leave out “concerned in P’s treatment or care” and insert “involved

in the organisation or conduct of the research project”
Clause 33
31
Page 19, line 17, leave out from “he” to “, or” in line 18 and insert “appears to object

(whether by showing signs of resistance or otherwise) except where what is being

done is intended to protect him from harm or to reduce or prevent pain or

discomfort”
32
Page 19, line 23, at end insert—

“( )
The interests of the person must be assumed to outweigh those of science

and society.”
33
Page 19, line 29, at end insert—

“(5)
But neither subsection (3) nor subsection (4) requires treatment that P has

been receiving as part of the project to be discontinued if R has reasonable

grounds for believing that there would be a significant risk to P’s health if

it were discontinued.”
After Clause 33
34
Insert the following new Clause—

“Loss of capacity during research project

(1)
This section applies where a person (“P”)—

(a)
has consented to take part in a research project begun before the

commencement of section 30, but

(b)
before the conclusion of the project, loses capacity to consent to

continue to take part in it.

(2)
The appropriate authority may by regulations provide that, despite P’s loss

of capacity, research of a prescribed kind may be carried out on, or in

relation to, P if—

(a)
the project satisfies prescribed requirements,

(  5  )

(b)
any information or material relating to P which is used in the

research is of a prescribed description and was obtained before P’s

loss of capacity, and

(c)
the person conducting the project takes in relation to P such steps

as may be prescribed for the purpose of protecting him.

(3)
The regulations may, in particular,—

(a)
make provision about when, for the purposes of the regulations, a

project is to be treated as having begun;

(b)
include provision similar to any made by section 31, 32 or 33.”
Clause 34
35
Page 19, line 33, leave out from ““independent” to end of line 34 and insert “mental

capacity advocates”) to be available to represent and support persons to whom acts

or decisions proposed under sections 35, 36 and 37 relate”
36
Page 19, line 36, leave out paragraphs (a) and (b) and insert “as to the appointment

of independent mental capacity advocates”
37
Page 19, line 40, leave out “consultee” and insert “mental capacity advocate”
38
Page 19, line 42, leave out “consultee” and insert “mental capacity advocate”
39
Page 20, line 2, leave out from “that” to “by” in line 3 and insert “a person to whom

a proposed act or decision relates should, so far as practicable, be represented and

supported”
40
Page 20, line 9, leave out “consultee” and insert “mental capacity advocate”
41
Page 20, line 10, leave out from “person” to “, and” in line 11 and insert “whom he

has been instructed to represent”
42
Page 20, line 19, leave out “consultee’s” and insert “mental capacity advocate’s”
43
Page 20, line 20, after first “section” insert “, section (Functions of independent mental

capacity advocates)”
44
Page 20, line 21, leave out “consultees” and insert “mental capacity advocates”
45
Page 20, line 23, leave out “consultees” and insert “mental capacity advocates”
46
Page 20, line 25, leave out subsection (8)
After Clause 34
47
Insert the following new Clause—

“Functions of independent mental capacity advocates

(1)
The appropriate authority may make regulations as to the functions of

independent mental capacity advocates.

(2)
The regulations may, in particular, make provision requiring an advocate

to take such steps as may be prescribed for the purpose of—

(a)
providing support to the person whom he has been instructed to

represent (“P”) so that P may participate as fully as possible in any

relevant decision;

(b)
obtaining and evaluating relevant information;

(  6  )

(c)
ascertaining what P’s wishes and feelings would be likely to be, and

the beliefs and values that would be likely to influence P, if he had

capacity;

(d)
ascertaining what alternative courses of action are available in

relation to P;

(e)
obtaining a further medical opinion where treatment is proposed

and the advocate thinks that one should be obtained.

(3)
The regulations may also make provision as to circumstances in which the

advocate may challenge, or provide assistance for the purpose of

challenging, any relevant decision.”
Clause 35
48
Page 20, line 33, leave out “about” and insert “in determining what would be in”
49
Page 20, line 36, leave out from “must” to end of line 38 and insert “instruct an

independent mental capacity advocate to represent P”
50
Page 20, line 42, leave out subsection (5) and insert—

“(5)
The NHS body must, in providing or securing the provision of treatment

for P, take into account any information given, or submissions made, by the

independent mental capacity advocate.”
Clause 36
51
Page 21, line 15, leave out “about” and insert “in determining what would be in”
52
Page 21, line 18, leave out from “must” to “unless” in line 20 and insert “instruct an

independent mental capacity advocate to represent P”
53
Page 21, line 25, leave out “seek advice from an independent consultee” and insert

“instruct an independent mental capacity advocate to represent P”
54
Page 21, line 33, leave out “seek advice from an independent consultee” and insert

“instruct an independent mental capacity advocate to represent P.”
55
Page 21, line 34, leave out subsection (5) and insert—

“(5)
The NHS body must, in deciding what arrangements to make for P, take

into account any information given, or submissions made, by the

independent mental capacity advocate.”
Clause 37
56
Page 22, line 13, leave out “about” and insert “in determining what would be in”
57
Page 22, line 22, leave out from “must” to “unless” in line 24 and insert “instruct an

independent mental capacity advocate to represent P”
58
Page 22, line 29, leave out from “not” to “before” and insert “instruct an

independent mental capacity advocate to represent P”
59
Page 22, line 36, leave out “seek advice from an independent consultee” and insert

“instruct an independent mental capacity advocate to represent P”
60
Page 22, line 37, leave out subsection (6) and insert—

(  7  )

“(6)
The local authority must, in deciding what arrangements to make for P,

take into account any information given, or submissions made, by the

independent mental capacity advocate.”
Clause 38
61
Page 22, line 41, leave out “36(3) and 37(4)” and insert “36(3) and (4) and 37(4) and

(5)”.
Clause 39
62
Page 23, line 6, leave out “consultees” and insert “mental capacity advocates”
63
Page 23, line 11, leave out from “which” to “, and” in line 13 and insert “an

independent mental capacity advocate must, or circumstances in which one may,

be instructed by a person of a prescribed description to represent a person who

lacks capacity”
Clause 40
64
Page 23, line 24, at end insert—

“(da)
for the guidance of persons carrying out research in reliance on any

provision made by or under this Act (and otherwise with respect to

sections 30 to (Loss of capacity during research project)),”
65
Page 23, line 25, leave out “consultees” and insert “mental capacity advocates”
66
Page 23, line 37, at end insert—

“(ba)
as a person carrying out research in reliance on any provision made

by or under this Act (see sections 30 to (Loss of capacity during

research project)),”
67
Page 23, line 38, leave out “consultee” and insert “mental capacity advocate”
Clause 56
68
Page 31, line 17, at end insert—

“(i)
publishing, in any manner the Public Guardian thinks appropriate,

any information he thinks appropriate about the discharge of his

functions”
After Clause 56
69
Insert the following new Clause—

“Public Guardian Board

(1)
There is to be a body, to be known as the Public Guardian Board.

(2)
The Board’s duty is to scrutinise and review the way in which the Public

Guardian discharges his functions and to make such recommendations to

the Lord Chancellor about that matter as it thinks appropriate.

(3)
The Lord Chancellor must, in discharging his functions under sections 55

and 56, give due consideration to recommendations made by the Board.

(4)
The members of the Board are to be appointed by the Lord Chancellor.