Care of Older and Incapacitated People (Human Rights) Bill

House of Commons

Session 2005 - 06
Internet Publications
Other Bills before Parliament

Care of Older and Incapacitated People (Human Rights) Bill

Care of Older and Incapacitated People (Human Rights) Bill
Part 2 — Duties of the Food Standards Agency
1

A
Bill
To
amend the Human Rights Act 1998 to extend the definition of public
authority to include any body that is regulated under the Care Standards Act
2000; to provide for clear nutritional standards to apply in all establishments
providing care for older people; to place certain duties on the Food Standards
Agency; to make provision in relation to mentally incapacitated persons; to
confer new functions on local authorities in relation to persons in need of care
or protection; and for connected purposes.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Care homes as public authorities
1
Care homes as public authorities
In section 6(3) of the Human Rights Act 1998 (c. 42) (meaning of “public
authority”)—
5
(a)
at the end of paragraph (a) omit “and”, and
(b)
after paragraph (b) insert “and
(c)
a care home within the meaning of section 3 of the Care
Standards Act 2000 (c. 14) (care homes),”.
Part 2
10
Duties of the Food Standards Agency
2
Duties of the Food Standards Agency
(1)
This section shall apply for the purposes of improving the health and well-
being of older people and of reducing the incidence of malnutrition in all
establishments providing care for older people.
15

Bill 112 54/1

Care of Older and Incapacitated People (Human Rights) Bill
Part 3 — Persons in need of care or protection
2

(2)
It shall be the duty of the Food Standards Agency (“the FSA”) to make an
assessment of medical and social evidence relating to older people in all care
settings within 12 months of the passing of this Act and, in accordance with
that assessment, to specify criteria for nutritional intake (including food and
drink content) which in its opinion—
5
(a)
is detrimental to the health of older people, or
(b)
would improve the health of older people, or
(c)
would ensure that the overall composition of any meal served in
establishments providing care for older people will protect the health
of older people.
10
(3)
Without prejudice to the generality in specifying any criteria pursuant to
subsection (2), the FSA shall take into account—
(a)
the nutritional composition of food and drink;
(b)
the presence of agricultural, veterinary and environmental
contaminants, hormones and growth mediators, pathogens and any
15
other residues, and additives in foods and drinks; and
(c)
food and drink production techniques, with reference to genetic
modification and irradiation.
(4)
Any criteria specified pursuant to subsection (2) may be modified or altered by
the FSA in the light of further assessments or further medical or social
20
evidence.
(5)
In this section—
“meal” includes breakfast, lunch, dinner and supper but does not include
light refreshments;
“older people” means people who have attained the age of 65.
25
Part 3
Persons in need of care or protection
3
Purpose and interpretation
(1)
This Part of this Act has effect for conferring powers and duties on local
authorities and their officers for the protection of vulnerable persons against
30
significant harm or serious exploitation.
(2)
In this Part of this Act “vulnerable person” means any person who has attained
the age of sixteen and—
(a)
is or may be in need of community care services by reason of mental or
other disability, age or illness; and
35
(b)
is or may be unable to take care of himself or to protect himself against
significant harm or serious exploitation.
(3)
In this Part of this Act “community care services” means services which a local
authority may provide or arrange to be provided under any of the following
provisions—
40
(a)
Part III of the National Assistance Act 1948 (c. 29);
(b)
section 45 of the Health Services and Public Health Act 1968 (c. 46)
(promotion by local authorities of the welfare of old people);
(c)
section 21 of and Schedule 8 to the National Health Service Act 1977
(c. 49) (local social services authorities);
45

Care of Older and Incapacitated People (Human Rights) Bill
Part 3 — Persons in need of care or protection
3

(d)
section 117 of the Mental Health Act 1983 (c. 20) (after-care);

and, in relation to a person who has not attained the age of eighteen, includes
services provided by a local authority in the exercise of functions conferred by
section 17 of the Children Act 1989 (c. 41) (provision of services for children in
need, their families and others).
5
(4)
In this Part of this Act “authorised officer of a local authority”, in relation to any
action to be taken by such an officer, means an officer of the authority
authorised by them to take actions of that description.
(5)
In this Part of this Act “harm”, in relation to a vulnerable person, means ill-
treatment of that person (including sexual abuse and forms of ill-treatment that
10
are not physical), the impairment of, or an avoidable deterioration in, the
physical or mental health of that person or the impairment of his physical,
intellectual, emotional, social or behavioural development.
4
Investigations
(1)
Where a local authority have reasonable cause to believe that a vulnerable
15
person in their area is suffering or likely to suffer significant harm or serious
exploitation the authority shall make such enquiries as they consider necessary
to enable them to decide—
(a)
whether that person is in fact suffering or likely to suffer such harm or
exploitation; and
20
(b)
if so, whether they should provide or arrange for the provision for that
person of community care services or take any other action (including
action under the subsequent provisions of this Part of this Act) to
protect that person from such harm or exploitation.
(2)
Where enquiries are made under subsection (1) with respect to any person the
25
local authority shall (with a view to enabling them to decide what action, if any,
to take with respect to that person) take such steps as are reasonably
practicable to enable an authorised officer of the authority to gain access to that
person unless the authority are satisfied that they already have sufficient
information with respect to that person.
30
(3)
Any person mentioned in subsection (5) must assist the authority with their
enquiries under this section (in particular by providing relevant information
and advice) if called upon to do so by the authority.
(4)
But subsection (3) does not oblige a person to assist the local authority if it
would be unreasonable to do so.
35
(5)
The persons referred to in subsection (3) are—
(a)
any local authority;
(b)
any local education authority;
(c)
any local housing authority;
(d)
any health authority; and
40
(e)
any person specified by the Secretary of State for the purposes of this
section.
(6)
Where a local authority are conducting enquiries under this section with
respect to a person who appears to be ordinarily resident in the area of another
authority, they shall consult that other authority, who may undertake the
45
necessary enquiries in their place.

Care of Older and Incapacitated People (Human Rights) Bill
Part 3 — Persons in need of care or protection
4

5
Officer’s powers of entry
(1)
If an authorised officer of a local authority has reasonable cause to believe that
a vulnerable person living in any premises in the authority's area is suffering
or likely to suffer significant harm or serious exploitation he may at any
reasonable time—
5
(a)
enter and inspect those premises; and
(b)
interview that person in private.
(2)
The officer shall, if requested to do so, produce evidence that he is an
authorised officer of the local authority.
(3)
The powers conferred by this section shall not be exercised in respect of any
10
person if the officer knows or believes that the person objects or would object
to their exercise but that restriction shall not apply if he has reasonable cause
to believe that the person is or may be suffering from mental disability.
(4)
This section does not confer any powers of entry to a health service hospital
within the meaning of the National Health Service Act 1977 (c. 49) or any
15
accommodation provided by a local authority and used as a hospital by or on
behalf of the Secretary of State under that Act.
6
Entry warrants
(1)
The court may, on the application of an authorised officer of a local authority,
issue a warrant authorising a constable, accompanied by such an officer, to
20
enter any premises in the authority's area which are specified in the warrant if
satisfied—
(a)
that the applicant has reasonable cause to believe that a vulnerable
person living in those premises is suffering or likely to suffer significant
harm or serious exploitation;
25
(b)
that granting the warrant is necessary to enable the officer to gain
access to that person; and
(c)
that the application is competent under subsection (2).
(2)
An authorised officer shall not make an application under this section in
respect of any person if he knows or believes that the person objects or would
30
object to entry being obtained but that restriction shall not apply if he has
reasonable cause to believe that the person is or may be suffering from mental
disability.
7
Assessment orders
(1)
The court may, on the application of an authorised officer of a local authority,
35
make an order under this section (an “assessment order”) in respect of any
person in the authority's area if satisfied—
(a)
that the applicant has reasonable cause to believe that the person
concerned is a vulnerable person suffering or likely to suffer significant
harm or serious exploitation;
40
(b)
that the order is required so that all or any of the matters referred to in
section 4(1)(a) and (b) above can be properly assessed; and
(c)
that the application is competent under subsection (2).
(2)
An authorised officer shall not make an application under this section in
respect of any person if he knows or believes that the person objects or would
45

Care of Older and Incapacitated People (Human Rights) Bill
Part 3 — Persons in need of care or protection
5

object to the making of the order but that restriction shall not apply if he has
reasonable cause to believe that the person is or may be suffering from mental
disability.
(3)
An assessment order shall specify the steps to be taken for carrying out the
assessment but nothing to which the person concerned objects shall be done
5
pursuant to the order unless the court when making the order, or at any time
while it is in force, expressly authorises it to be done notwithstanding the
objection.
(4)
An assessment order shall—
(a)
specify the date by which the assessment is to begin; and
10
(b)
specify a period beginning with that date for which the order is to be in
force, being the shortest period considered by the court to be necessary
for the purposes of the assessment and not in any event exceeding eight
days.
(5)
The person to whom an assessment order relates may only be removed from
15
his place of residence pursuant to the order—
(a)
in accordance with directions specified in the order;
(b)
if it is necessary for the purposes of the assessment; and
(c)
for such period or periods as are specified in the order.
(6)
The court may treat an application for an assessment order as an application
20
for a temporary protection order if the requirements for the making of such an
order are satisfied and the court considers that such an order is more
appropriate than an assessment order.
8
Temporary protection orders
(1)
The court may, on the application of an authorised officer of a local authority,
25
make an order under this section (a “temporary protection order”) in respect of
any person in the authority's area if satisfied—
(a)
that the person concerned is a vulnerable person;
(b)
that he is likely to suffer significant harm or serious exploitation unless
removed to and kept in, or prevented from leaving, protective
30
accommodation for a short period; and
(c)
that the application is competent under subsection (2).
(2)
An authorised officer shall not make an application under this section in
respect of any person if he knows or believes that the person objects or would
object to the making of the order but that restriction shall not apply if he has
35
reasonable cause to believe that the person is or may be suffering from mental
disability.
(3)
A temporary protection order shall authorise the removal of the person
concerned to protective accommodation specified in the order and the keeping
of that person in that accommodation or, as the case may be, preventing that
40
person from leaving the accommodation, for such period as is so specified,
being the shortest period considered by the court to be necessary for achieving
the purpose of the order and not in any event exceeding eight days.
(4)
On the making of a temporary protection order or at any time while it is in
force the court may give directions for the assessment of all or any of the
45
matters mentioned in section 4(1)(a) and (b) and, if such directions are given,

Care of Older and Incapacitated People (Human Rights) Bill
Part 3 — Persons in need of care or protection
6

subsection (3) shall have effect in relation to the directions as it has effect in
relation to an assessment order.
(5)
An application for a temporary protection order may be made ex parte but the
person in respect of whom it is made on any such application, and any person
who is the donee of a lasting power of attorney granted by him or appointed
5
by the court to be his deputy, may apply for the order to be discharged.
(6)
The court may treat an application for a temporary protection order as an
application for an assessment order if the requirements for the making of such
an order are satisfied and the court considers that such an order is more
appropriate than a temporary protection order.
10
(7)
In this section “protective accommodation” means—
(a)
residential accommodation provided by a local social services
authority under Part III of the National Assistance Act 1948 (c. 29);
(b)
a health service hospital within the meaning of the National Health
Service Act 1977 (c. 49) or accommodation provided by a local
15
authority and used as a hospital by or on behalf of the Secretary of State
under that Act;
(c)
a care home within the meaning of Part I of the Care Standards Act 2000
(c. 14);
(d)
any other suitable place the occupier of which is willing temporarily to
20
receive the person concerned.
(8)
Where a person has been removed to protective accommodation pursuant to a
temporary protection order it shall be the duty of the local authority to return
him to the place from which he was removed as soon as that is practicable and
consistent with his interests.
25
9
Offences
(1)
It is an offence for a person without reasonable excuse to obstruct an
authorised officer of a local authority in the execution of his powers under this
Part of this Act.
(2)
It is an offence for a person without reasonable excuse to obstruct any person
30
acting pursuant to an assessment order or a temporary protection order or to
any directions given in connection with such an order.
(3)
Subsections (1) and (2) above do not apply to the person for whose benefit the
powers are sought to be exercised or, as the case may be, in respect of whom
the order is made or the directions are given.
35
(4)
A person guilty of an offence under this section is liable on summary
conviction to imprisonment for a term not exceeding three months or a fine not
exceeding level 4 on the standard scale or both.
(5)
Proceedings for an offence under this section may be brought by a local
authority.
40
10
Protection of property of persons removed from home
In section 48 of the National Assistance Act 1948 (duty of local authority to
protect property of person removed from home) after subsection (1)(b) insert—
“(ba)
is admitted to accommodation provided or arranged by a
council in pursuance of an order made on the application of the
45

Care of Older and Incapacitated People (Human Rights) Bill
Part 4 — Final provisions
7

authority under Part III of the Care of Older and Incapacitated
People (Human Rights) Act 2006, or
(bb)
is removed from his place of residence in pursuance of an
assessment order or a temporary protection order under Part III
of that Act,”.
5
11
Meaning of “the court”
(1)
Subject to the provisions of this section “the court” means a magistrates’ court
or a single justice of the peace.
(2)
The Lord Chancellor may by order make provision for determining whether
proceedings under this Part of this Act are to be instituted in the Court of
10
Protection, in a magistrates' court or before a single justice; and proceedings
under this Part shall be treated as family proceedings for the purposes of
sections 66, 67, 69(1) and 70 of the Magistrates’ Courts Act 1980 (c. 43).
(3)
The power to make an order under subsection (2) is exercisable by statutory
instrument.
15
(4)
A statutory instrument containing an order under subsection (2) shall be
subject to annulment in pursuance of a resolution of either House of
Parliament.
Part 4
Final provisions
20
12
Expenses
There shall be paid out of money provided by Parliament—
(a)
any expenditure under this Act of a Minister of the Crown, and
(b)
any increase attributable to this Act in the sums so provided under any other
enactment.
25
13
Extent
(1)
Sections 1, 2 and 12 to 14 of this Act extend to Scotland and Northern Ireland.
(2)
Sections 3 to 11 of this Act extend to England and Wales only.
14
Short title and commencement
(1)
This act may be cited as the Care of Older and Incapacitated People (Human
30
Rights) Act 2006.
(2)
This Act comes into force at the end of the period of two months beginning
with the day on which it is passed.