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| | 130B | Arrangements under section 130A |
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| | (1) | The help available to a qualifying patient under arrangements under |
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| | section 130A above shall include help in obtaining information about and |
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40 | | (a) | the provisions of this Act by virtue of which he is a qualifying |
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| | (b) | any conditions or restrictions to which he is subject by virtue of |
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| | (c) | what (if any) medical treatment is given to him or is proposed or |
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45 | | |
| | (d) | why it is given, proposed or discussed; |
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| | (e) | the authority under which it is, or would be, given; and |
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| | (f) | the requirements of this Act which apply, or would apply, in |
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| | connection with the giving of the treatment to him. |
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50 | | (2) | The help available under the arrangements to a qualifying patient shall |
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| | (a) | help in obtaining information about and understanding any rights |
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| | which may be exercised under this Act by or in relation to him; |
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55 | | (b) | help (by way of representation or otherwise) in exercising those |
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| | (3) | For the purpose of providing help to a patient in accordance with the |
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| | arrangements, an independent mental health advocate may— |
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| | (a) | visit and interview the patient in private; |
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60 | | (b) | visit and interview any person who is professionally concerned |
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| | with his medical treatment; |
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| | (c) | require the production of and inspect any records relating to his |
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| | detention or treatment in any hospital or registered establishment |
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| | or to any after-care services provided for him under section 117 |
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65 | | (d) | require the production of and inspect any records of, or held by, |
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| | a local social services authority which relate to him. |
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| | (4) | But an independent mental health advocate is not entitled to the |
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| | production of, or to inspect, records in reliance on subsection (3)(c) or (d) |
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70 | | |
| | (a) | in a case where the patient has capacity or is competent to |
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| | consent, he does consent; or |
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| | (b) | in any other case, the production or inspection would not conflict |
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| | with a decision made by a donee or deputy or the Court of |
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75 | | Protection and the person holding the records, having regard to |
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| | such matters as may be prescribed in regulations under section |
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| | 130A above, considers that— |
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| | (i) | the records may be relevant to the help to be provided by |
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80 | | (ii) | the production or inspection is appropriate. |
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| | (5) | For the purpose of providing help to a patient in accordance with the |
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| | arrangements, an independent mental health advocate shall comply with |
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| | any reasonable request made to him by any of the following for him to |
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| | visit and interview the patient— |
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85 | | (a) | the person (if any) appearing to the advocate to be the patient’s |
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| | (b) | the responsible clinician for the purposes of this Act; |
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| | (c) | an approved mental health professional. |
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| | (6) | But nothing in this Act prevents the patient from declining to be provided |
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90 | | with help under the arrangements. |
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| | (7) | In subsection (4) above— |
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| | (a) | the reference to a patient who has capacity is to be read in |
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| | accordance with the Mental Capacity Act 2005; |
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| | (b) | the reference to a donee is to a donee of a lasting power of |
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95 | | attorney (within the meaning of section 9 of that Act) created by |
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| | the patient, where the donee is acting within the scope of his |
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| | authority and in accordance with that Act; |
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| | (c) | the reference to a deputy is to a deputy appointed for the patient |
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| | by the Court of Protection under section 16 of that Act, where the |
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100 | | deputy is acting within the scope of his authority and in |
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| | accordance with that Act. |
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| | 130C | Section 130A: supplemental |
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| | (1) | This section applies for the purposes of section 130A above. |
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| | (2) | A patient is a qualifying patient if he is— |
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105 | | (a) | liable to be detained under this Act (otherwise than by virtue of |
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| | section 4 or 5(2) or (4) above or section 135 or 136 below); |
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| | (b) | subject to guardianship under this Act; or |
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| | (3) | A patient is also a qualifying patient if— |
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110 | | (a) | not being a qualifying patient falling within subsection (2) |
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| | above, he discusses with a registered medical practitioner or |
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| | approved clinician the possibility of being given a form of |
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| | treatment to which section 57 above applies; or |
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| | (b) | not having attained the age of 18 years and not being a qualifying |
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115 | | patient falling within subsection (2) above, he discusses with a |
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| | registered medical practitioner or approved clinician the |
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| | possibility of being given a form of treatment to which section |
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| | (4) | Where a patient who is a qualifying patient falling within subsection (3) |
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120 | | above is informed that the treatment concerned is proposed in his case, |
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| | he remains a qualifying patient falling within that subsection until— |
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| | (a) | the proposal is withdrawn; or |
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| | (b) | the treatment is completed or discontinued. |
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| | (5) | References to the appropriate national authority are— |
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125 | | (a) | in relation to a qualifying patient in England, to the Secretary of |
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| | (b) | in relation to a qualifying patient in Wales, to the Welsh |
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130 | | (6) | For the purposes of subsection (5) above— |
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| | (a) | a qualifying patient falling within subsection (2)(a) above is to be |
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| | regarded as being in the territory in which the hospital or |
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| | registered establishment in which he is liable to be detained is |
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135 | | (b) | a qualifying patient falling within subsection (2)(b) above is to |
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| | be regarded as being in the territory in which the area of the |
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| | responsible local social services authority within the meaning of |
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| | section 34(3) above is situated; |
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| | (c) | a qualifying patient falling within subsection (2)(c) above is to be |
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140 | | regarded as being in the territory in which the responsible |
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| | |
| | (d) | a qualifying patient falling within subsection (3) above is to be |
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| | regarded as being in the territory determined in accordance with |
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| | arrangements made for the purposes of this paragraph, and |
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145 | | published, by the Secretary of State and the Welsh Ministers. |
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| | 130D | Duty to give information about independent mental health advocates |
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| | (1) | The responsible person in relation to a qualifying patient (within the |
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| | meaning given by section 130C above) shall take such steps as are |
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| | practicable to ensure that the patient understands— |
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150 | | (a) | that help is available to him from an independent mental health |
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| | |
| | (b) | how he can obtain that help. |
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| | (2) | In subsection (1) above, “the responsible person” means— |
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| | (a) | in relation to a qualifying patient falling within section |
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155 | | 130C(2)(a) above (other than one also falling within paragraph |
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| | (b) below), the managers of the hospital or registered |
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| | establishment in which he is liable to be detained; |
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| | (b) | in relation to a qualifying patient falling within section |
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| | 130C(2)(a) above and conditionally discharged by virtue of |
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160 | | section 42(2), 73 or 74 above, the responsible clinician; |
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| | (c) | in relation to a qualifying patient falling within section |
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| | 130C(2)(b) above, the responsible local social services authority |
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| | within the meaning of section 34(3) above; |
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| | (d) | in relation to a qualifying patient falling within section 30C(2)(c) |
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165 | | above, the managers of the responsible hospital; |
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| | (e) | in relation to a qualifying patient falling within section 130C(3) |
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| | above, the registered medical practitioner or approved clinician |
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| | with whom the patient first discusses the possibility of being |
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| | given the treatment concerned. |
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170 | | (3) | The steps to be taken under subsection (1) above shall be taken— |
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| | (a) | where the responsible person falls within subsection (2)(a) |
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| | above, as soon as practicable after the patient becomes liable to |
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| | (b) | where the responsible person falls within subsection (2)(b) |
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175 | | above, as soon as practicable after the conditional discharge; |
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| | (c) | where the responsible person falls within subsection (2)(c) |
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| | above, as soon as practicable after the patient becomes subject to |
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| | (d) | where the responsible person falls within subsection (2)(d) |
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180 | | above, as soon as practicable after the patient becomes a |
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| | (e) | where the responsible person falls within subsection (2)(e) |
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| | above, while the discussion with the patient is taking place or as |
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| | soon as practicable thereafter. |
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185 | | (4) | The steps to be taken under subsection (1) above shall include giving the |
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| | requisite information both orally and in writing. |
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| | (5) | The responsible person in relation to a qualifying patient falling within |
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| | section 130C(2) above (other than a patient liable to be detained by virtue |
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| | of Part 3 of this Act) shall, except where the patient otherwise requests, |
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190 | | take such steps as are practicable to furnish the person (if any) appearing |
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| | to the responsible person to be the patient’s nearest relative with a copy |
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| | of any information given to the patient in writing under subsection (1) |
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| | (6) | The steps to be taken under subsection (5) above shall be taken when the |
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195 | | information concerned is given to the patient or within a reasonable time |
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| | (3) | In section 134 (patients’ correspondence), in subsection (3A), for paragraph (b) |
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| | |
| | “(b) | “independent advocacy services” means services provided |
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200 | | |
| | (i) | arrangements under section 130A above; |
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| | (ii) | arrangements under section 248 of the National Health |
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| | Service Act 2006 or section 187 of the National Health |
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| | Service (Wales) Act 2006; or |
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205 | | (iii) | arrangements of a description prescribed as mentioned |
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| | in paragraph (a) above.”’. |
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| | As an Amendment to Ms Secretary Hewitt’s proposed New Clause (Independent |
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| | Mental Health advocates) (NC3):— |
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| | |
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| | ‘(1A) | The appropriate national authority must ensure that help under arrangements |
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| | made under subsection (1) is available to a qualifying patient from the point at |
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| | which he undergoes any assessment for the purposes of this Act.’. |
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| Line 118, at end insert ‘, or is admitted to, or remains in, a hospital, or registered |
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| establishment in pusuance of such arrangements as are mentioned in section |
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| |
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| | ‘(3A) | A patient is also a qualifying patient if he is about to undergo, or has undergone, |
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| | any assessment for the purposes of this Act.’. |
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| | Membership of Mental Health Review Tribunals |
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| To move the following Clause:— |
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| | ‘In Section 78 of the 1983 Act after subsection (9) insert— |
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| | “(10) | The Lord Chancellor must provide for the membership of Mental Health |
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| | Review Tribunals to include the following groups— |
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| | (a) | people from diverse cultural communities; |
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| | Nomination of carer as nearest relative |
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| To move the following Clause:— |
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| | ‘(1) | The 1983 Act is amended as follows. |
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| | (2) | After section 26(4) insert— |
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| | “(4A) | Where a person has made an advance nomination with regard to the |
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| | choice of a relative or other person to be his nearest relative, his nearest |
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| | relative shall, subject to the power of the court under section 29 to |
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| | appoint an acting nearest relative, be determined by giving preference to |
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| | |
| | (4B) | “Advance nomination” means a nomination made by a person (“P”), after |
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| | he has reached 18 and when he has capacity to do so and in contemplation |
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| | that he shall become subject to any act or decision exercisable under the |
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| | provisions of this Act that his choice of nearest relative shall take |
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| | precedence over the provisions of subsection (3). |
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| | (4C) | For the purposes of subsection (4B) P’s nomination must be his carer as |
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| | defined by section 1(1)(a) of the Carer’s and Disabled Children Act 2000. |
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| | (4D) | For the purposes of section (4B) nomination cannot be made or |
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| | withdrawn if P is subject to an order under this Act. |
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| | (4E) | An advance nomination is not valid if P— |
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| | (a) | has withdrawn the decision at a time when he had capacity to do |
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| | |
| | (b) | has done anything else clearly inconsistent with the advance |
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| | nomination remaining his fixed decision. |
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| | (4F) | An advance nomination is valid only if— |
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| | |
| | (b) | it is signed by P or by another person in P’s presence and by P’s |
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| | |
| | (c) | the signature is made or acknowledged by P in the presence of a |
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| | (d) | the witness signs it, or acknowledges his signature, in P’s |
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