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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;

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(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,

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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

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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;

 

 

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

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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;

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(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—

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(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

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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

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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).

 

 

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

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      (2)  

The regulations may make provision relating to a person’s—

(a)   

qualifications,

(b)   

skills,

(c)   

training,

(d)   

experience,

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(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

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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

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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

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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

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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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Schedule 6 — Mental Capacity Act 2005: new Schedule A1

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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.

 

 

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

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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;

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(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.

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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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Schedule 6 — Mental Capacity Act 2005: new Schedule A1

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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;

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(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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Schedule 6 — Mental Capacity Act 2005: new Schedule A1

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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

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suspension or revival of a function.

 

 

 
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