Mental Health Bill [HL]

House of Commons

Session 2006 - 07
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Mental Health Bill [HL]

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
108

Records
121
A supervisory body must keep a written record of the following
information—
(a)
each request for a review that is made to them;
(b)
the outcome of each request;
5
(c)
each review which they carry out;
(d)
the outcome of each review which they carry out;
(e)
any variation of an authorisation made in consequence of
a review.
Relationship between review and suspension under Part 6
10
122   (1)
This paragraph applies if a standard authorisation is suspended in
accordance with Part 6.
      (2)
No review may be requested under this Part whilst the standard
authorisation is suspended.
      (3)
If a review has already been requested, or is being carried out,
15
when the standard authorisation is suspended, no steps are to be
taken in connection with that review whilst the authorisation is
suspended.
Relationship between review and request for new authorisation
123   (1)
This paragraph applies if, in accordance with paragraph 24 (as
20
read with paragraph 29), the managing authority of the relevant
hospital or care home make a request for a new standard
authorisation which would be in force after the expiry of the
existing authorisation.
      (2)
No review may be requested under this Part until the request for
25
the new standard authorisation has been disposed of.
      (3)
If a review has already been requested, or is being carried out,
when the new standard authorisation is requested, no steps are to
be taken in connection with that review until the request for the
new standard authorisation has been disposed of.
30
124   (1)
This paragraph applies if—
(a)
a review under this Part has been requested, or is being
carried out, and
(b)
the managing authority of the relevant hospital or care
home make a request under paragraph 30 for a new
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standard authorisation which would be in force on or
before, and after, the expiry of the existing authorisation.
      (2)
No steps are to be taken in connection with the review under this
Part until the request for the new standard authorisation has been
disposed of.
40
125
In paragraphs 123 and 124—
(a)
the existing authorisation is the authorisation referred to in
paragraph 101;

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(b)
the expiry of the existing authorisation is the time when it
is expected to cease to be in force.
Part 9
Assessments under this Schedule
Introduction
5
126
This Part contains provision about assessments under this
Schedule.
127
An assessment under this Schedule is either of the following—
(a)
an assessment carried out in connection with a request for
a standard authorisation under Part 4;
10
(b)
a review assessment carried out in connection with a
review of a standard authorisation under Part 8.
128
In this Part, in relation to an assessment under this Schedule—
“assessor” means the person carrying out the assessment;
“relevant procedure” means—
15
(a)
the request for the standard authorisation, or
(b)
the review of the standard authorisation;
“supervisory body” means the supervisory body responsible
for securing that the assessment is carried out.
Supervisory body to select assessor
20
129   (1)
It is for the supervisory body to select a person to carry out an
assessment under this Schedule.
      (2)
The supervisory body must not select a person to carry out an
assessment unless the person—
(a)
appears to the supervisory body to be suitable to carry out
25
the assessment (having regard, in particular, to the type of
assessment and the person to be assessed), and
(b)
is eligible to carry out the assessment.
      (3)
Regulations may make provision about the selection, and
eligibility, of persons to carry out assessments under this
30
Schedule.
      (4)
Sub-paragraphs (5) and (6) apply if two or more assessments are
to be obtained for the purposes of the relevant procedure.
      (5)
In a case where the assessments to be obtained include a mental
health assessment and a best interests assessment, the supervisory
35
body must not select the same person to carry out both
assessments.
      (6)
Except as prohibited by sub-paragraph (5), the supervisory body
may select the same person to carry out any number of the
assessments which the person appears to be suitable, and is
40
eligible, to carry out.
130   (1)
This paragraph applies to regulations under paragraph 129(3).

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      (2)
The regulations may make provision relating to a person’s—
(a)
qualifications,
(b)
skills,
(c)
training,
(d)
experience,
5
(e)
relationship to, or connection with, the relevant person or
any other person,
(f)
involvement in the care or treatment of the relevant
person,
(g)
connection with the supervisory body, or
10
(h)
connection with the relevant hospital or care home, or with
any other establishment or undertaking.
      (3)
The provision that the regulations may make in relation to a
person’s training may provide for particular training to be
specified by the appropriate authority otherwise than in the
15
regulations.
      (4)
In sub-paragraph (3) the “appropriate authority” means—
(a)
in relation to England: the Secretary of State;
(b)
in relation to Wales: the National Assembly for Wales.
      (5)
The regulations may make provision requiring a person to be
20
insured in respect of liabilities that may arise in connection with
the carrying out of an assessment.
      (6)
In relation to cases where two or more assessments are to be
obtained for the purposes of the relevant procedure, the
regulations may limit the number, kind or combination of
25
assessments which a particular person is eligible to carry out.
      (7)
Sub-paragraphs (2) to (6) do not limit the generality of the
provision that may be made in the regulations.
Examination and copying of records
131
An assessor may, at all reasonable times, examine and take copies
30
of—
(a)
any health record,
(b)
any record of, or held by, a local authority and compiled in
accordance with a social services function, and
(c)
any record held by a person registered under Part 2 of the
35
Care Standards Act 2000,

which the assessor considers may be relevant to the assessment
which is being carried out.
Representations
132
In carrying out an assessment under this Schedule, the assessor
40
must take into account any information given, or submissions
made, by any of the following—
(a)
the relevant person’s representative;
(b)
any section 39A IMCA;
(c)
any section 39C IMCA.
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Assessments to stop if any comes to negative conclusion
133   (1)
This paragraph applies if an assessment under this Schedule
comes to the conclusion that the relevant person does not meet one
of the qualifying requirements.
      (2)
This Schedule does not require the supervisory body to secure that
5
any other assessments under this Schedule are carried out in
relation to the relevant procedure.
      (3)
The supervisory body must give notice to any assessor who is
carrying out another assessment in connection with the relevant
procedure that they are to cease carrying out that assessment.
10
      (4)
If an assessor receives such notice, this Schedule does not require
the assessor to continue carrying out that assessment.
Duty to keep records and give copies
134   (1)
This paragraph applies if an assessor has carried out an
assessment under this Schedule (whatever conclusions the
15
assessment has come to).
      (2)
The assessor must keep a written record of the assessment.
      (3)
As soon as practicable after carrying out the assessment, the
assessor must give copies of the assessment to the supervisory
body.
20
135   (1)
This paragraph applies to the supervisory body if they are given a
copy of an assessment under this Schedule.
      (2)
The supervisory body must give copies of the assessment to all of
the following—
(a)
the managing authority of the relevant hospital or care
25
home;
(b)
the relevant person;
(c)
any section 39A IMCA;
(d)
the relevant person’s representative.
      (3)
If—
30
(a)
the assessment is obtained in relation to a request for a
standard authorisation, and
(b)
the supervisory body are required by paragraph 50(1) to
give the standard authorisation,

the supervisory body must give the copies of the assessment when
35
they give copies of the authorisation in accordance with
paragraph 57.
      (4)
If—
(a)
the assessment is obtained in relation to a request for a
standard authorisation, and
40
(b)
the supervisory body are prohibited by paragraph 50(2)
from giving the standard authorisation,

the supervisory body must give the copies of the assessment when
they give notice in accordance with paragraph 58.

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      (5)
If the assessment is obtained in connection with the review of a
standard authorisation, the supervisory body must give the copies
of the assessment when they give notice in accordance with
paragraph 120.
136   (1)
This paragraph applies to the supervisory body if—
5
(a)
they are given a copy of a best interests assessment, and
(b)
the assessment includes, in accordance with paragraph
44(2), a statement that it appears to the assessor that there
is an unauthorised deprivation of liberty.
      (2)
The supervisory body must notify all of the persons listed in sub-
10
paragraph (3) that the assessment includes such a statement.
      (3)
Those persons are—
(a)
the managing authority of the relevant hospital or care
home;
(b)
the relevant person;
15
(c)
any section 39A IMCA;
(d)
any interested person consulted by the best interests
assessor.
      (4)
The supervisory body must comply with this paragraph when (or
at some time before) they comply with paragraph 135.
20
Part 10
Relevant person’s representative
The representative
137
In this Schedule the relevant person’s representative is the person
appointed as such in accordance with this Part.
25
138   (1)
Regulations may make provision about the selection and
appointment of representatives.
      (2)
In this Part such regulations are referred to as “appointment
regulations”.
Supervisory body to appoint representative
30
139   (1)
The supervisory body must appoint a person to be the relevant
person’s representative as soon as practicable after a standard
authorisation is given.
      (2)
The supervisory body must appoint a person to be the relevant
person’s representative if a vacancy arises whilst a standard
35
authorisation is in force.
      (3)
Where a vacancy arises, the appointment under sub-paragraph (2)
is to be made as soon as practicable after the supervisory body
becomes aware of the vacancy.
140   (1)
The selection of a person for appointment under paragraph 139
40
must not be made unless it appears to the person making the

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selection that the prospective representative would, if
appointed—
(a)
maintain contact with the relevant person,
(b)
represent the relevant person in matters relating to or
connected with this Schedule, and
5
(c)
support the relevant person in matters relating to or
connected with this Schedule.
141   (1)
Any appointment of a representative for a relevant person is in
addition to, and does not affect, any appointment of a donee or
deputy.
10
      (2)
The functions of any representative are in addition to, and do not
affect—
(a)
the authority of any donee,
(b)
the powers of any deputy, or
(c)
any powers of the court.
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Appointment regulations
142
Appointment regulations may provide that the procedure for
appointing a representative may begin at any time after a request
for a standard authorisation is made (including a time before the
request has been disposed of).
20
143   (1)
Appointment regulations may make provision about who is to
select a person for appointment as a representative.
      (2)
But regulations under this paragraph may only provide for the
following to make a selection—
(a)
the relevant person, if he has capacity in relation to the
25
question of which person should be his representative;
(b)
a donee of a lasting power of attorney granted by the
relevant person, if it is within the scope of his authority to
select a person;
(c)
a deputy, if it is within the scope of his authority to select a
30
person;
(d)
a best interests assessor;
(e)
the supervisory body.
      (3)
Regulations under this paragraph may provide that a selection by
the relevant person, a donee or a deputy is subject to approval by
35
a best interests assessor or the supervisory body.
      (4)
Regulations under this paragraph may provide that, if more than
one selection is necessary in connection with the appointment of a
particular representative—
(a)
the same person may make more than one selection;
40
(b)
different persons may make different selections.
      (5)
For the purposes of this paragraph a best interests assessor is a
person carrying out a best interests assessment in connection with
the standard authorisation in question (including the giving of
that authorisation).
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144   (1)
Appointment regulations may make provision about who may, or
may not, be—
(a)
selected for appointment as a representative, or
(b)
appointed as a representative.
      (2)
Regulations under this paragraph may relate to any of the
5
following matters—
(a)
a person’s age;
(b)
a person’s suitability;
(c)
a person’s independence;
(d)
a person’s willingness;
10
(e)
a person’s qualifications.
145
Appointment regulations may make provision about the
formalities of appointing a person as a representative.
146
In a case where a best interests assessor is to select a person to be
appointed as a representative, appointment regulations may
15
provide for the variation of the assessor’s duties in relation to the
assessment which he is carrying out.
Monitoring of representatives
147
Regulations may make provision requiring the managing
authority of the relevant hospital or care home to—
20
(a)
monitor, and
(b)
report to the supervisory body on,

the extent to which a representative is maintaining contact with
the relevant person.
Termination
25
148
Regulations may make provision about the circumstances in
which the appointment of a person as the relevant person’s
representative ends or may be ended.
149
Regulations may make provision about the formalities of ending
the appointment of a person as a representative.
30
Suspension of representative’s functions
150   (1)
Regulations may make provision about the circumstances in
which functions exercisable by, or in relation to, the relevant
person’s representative (whether under this Schedule or not) may
be—
35
(a)
suspended, and
(b)
if suspended, revived.
      (2)
The regulations may make provision about the formalities for
giving effect to the suspension or revival of a function.
      (3)
The regulations may make provision about the effect of the
40
suspension or revival of a function.