House of Commons portcullis
House of Commons
Session 2006 - 07
Internet Publications
Other Bills before Parliament

Mental Health Bill [HL]


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

115

 

Payment of representative

151        

Regulations may make provision for payments to be made to, or

in relation to, persons exercising functions as the relevant person’s

representative.

Regulations under this Part

5

152        

The provisions of this Part which specify provision that may be

made in regulations under this Part do not affect the generality of

the power to make such regulations.

Effect of appointment of section 39C IMCA

153        

Paragraphs 158 and 159 make provision about the exercise of

10

functions by, or towards, the relevant person’s representative

during periods when—

(a)   

no person is appointed as the relevant person’s

representative, but

(b)   

a person is appointed as a section 39C IMCA.

15

Part 11

IMCAs

Application of Part

154        

This Part applies for the purposes of this Schedule.

The IMCAs

20

155        

A section 39A IMCA is an independent mental capacity advocate

appointed under section 39A.

156        

A section 39C IMCA is an independent mental capacity advocate

appointed under section 39C.

157        

An IMCA is a section 39A IMCA or a section 39C IMCA.

25

Section 39C IMCA: functions

158   (1)  

This paragraph applies if, and for as long as, there is a section 39C

IMCA.

      (2)  

In the application of the relevant provisions, references to the

relevant person’s representative are to be read as references to the

30

section 39C IMCA.

      (3)  

But sub-paragraph (2) does not apply to any function under the

relevant provisions for as long as the function is suspended in

accordance with provision made under Part 10.

      (4)  

In this paragraph and paragraph 159 the relevant provisions are—

35

(a)   

paragraph 102(3)(b) (request for review under Part 8);

(b)   

paragraph 108(1)(b) (notice of review under Part 8);

 

 

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

116

 

(c)   

paragraph 120(1)(c) (notice of outcome of review under

Part 8).

159   (1)  

This paragraph applies if—

(a)   

a person is appointed as the relevant person’s

representative, and

5

(b)   

a person accordingly ceases to hold an appointment as a

section 39C IMCA.

      (2)  

Where a function under a relevant provision has been exercised

by, or towards, the section 39C IMCA, there is no requirement for

that function to be exercised again by, or towards, the relevant

10

person’s representative.

Section 39A IMCA: restriction of functions

160   (1)  

This paragraph applies if—

(a)   

there is a section 39A IMCA, and

(b)   

a person is appointed under Part 10 to be the relevant

15

person’s representative (whether or not that person, or any

person subsequently appointed, is currently the relevant

person’s representative).

      (2)  

The duties imposed on, and the powers exercisable by, the section

39A IMCA do not apply.

20

      (3)  

The duties imposed on, and the powers exercisable by, any other

person do not apply, so far as they fall to be performed or

exercised towards the section 39A IMCA.

      (4)  

But sub-paragraph (2) does not apply to any power of challenge

exercisable by the section 39A IMCA.

25

      (5)  

And sub-paragraph (3) does not apply to any duty or power of any

other person so far as it relates to any power of challenge

exercisable by the section 39A IMCA.

      (6)  

Before exercising any power of challenge, the section 39A IMCA

must take the views of the relevant person’s representative into

30

account.

      (7)  

A power of challenge is a power to make an application to the

court under section 21A in connection with the giving of the

standard authorisation.

Part 12

35

Miscellaneous

Monitoring of operation of Schedule

161   (1)  

Regulations may make provision for, and in connection with,

requiring one or more prescribed bodies to monitor, and report

on, the operation of this Schedule in relation to England.

40

      (2)  

The regulations may, in particular, give a prescribed body

authority to do one or more of the following things—

 

 

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

117

 

(a)   

to visit hospitals and care homes;

(b)   

to visit and interview persons accommodated in hospitals

and care homes;

(c)   

to require the production of, and to inspect, records

relating to the care or treatment of persons.

5

      (3)  

“Prescribed” means prescribed in regulations under this

paragraph.

162   (1)  

Regulations may make provision for, and in connection with,

enabling the National Assembly for Wales to monitor, and report

on, the operation of this Schedule in relation to Wales.

10

      (2)  

The National Assembly may direct one or more persons or bodies

to carry out the Assembly’s functions under regulations under this

paragraph.

Disclosure of information

163   (1)  

Regulations may require either or both of the following to disclose

15

prescribed information to prescribed bodies—

(a)   

supervisory bodies;

(b)   

managing authorities of hospitals or care homes.

      (2)  

“Prescribed” means prescribed in regulations under this

paragraph.

20

      (3)  

Regulations under this paragraph may only prescribe information

relating to matters with which this Schedule is concerned.

Directions by National Assembly in relation to supervisory functions

164   (1)  

The National Assembly for Wales may direct a Local Health Board

to exercise in relation to its area any supervisory functions which

25

are specified in the direction.

      (2)  

Directions under this paragraph must not preclude the National

Assembly from exercising the functions specified in the directions.

      (3)  

In this paragraph “supervisory functions” means functions which

the National Assembly have as supervisory body, so far as they

30

are exercisable in relation to hospitals (whether NHS or

independent hospitals, and whether in Wales or England).

165   (1)  

This paragraph applies where, under paragraph 164, a Local

Health Board (“the specified LHB”) is directed to exercise

supervisory functions (“delegated functions”).

35

      (2)  

The National Assembly for Wales may give directions to the

specified LHB about the Board’s exercise of delegated functions.

      (3)  

The National Assembly may give directions for any delegated

functions to be exercised, on behalf of the specified LHB, by a

committee, sub-committee or officer of that Board.

40

      (4)  

The National Assembly may give directions providing for any

delegated functions to be exercised by the specified LHB jointly

with one or more other Local Health Boards.

 

 

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

118

 

      (5)  

Where, under sub-paragraph (4), delegated functions are

exercisable jointly, the National Assembly may give directions

providing for the functions to be exercised, on behalf of the Local

Health Boards in question, by a joint committee or joint sub-

committee.

5

166   (1)  

Directions under paragraph 164 must be given in regulations.

      (2)  

Directions under paragraph 165 may be given—

(a)   

in regulations, or

(b)   

by instrument in writing.

167        

The power under paragraph 164 or paragraph 165 to give

10

directions includes power to vary or revoke directions given

under that paragraph.

Notices

168        

Any notice under this Schedule must be in writing.

Regulations

15

169   (1)  

This paragraph applies to all regulations under this Schedule,

except regulations under paragraph 161, 162, 166 or 182.

      (2)  

It is for the Secretary of State to make such regulations in relation

to authorisations under this Schedule which relate to hospitals

and care homes situated in England.

20

      (3)  

It is for the National Assembly for Wales to make such regulations

in relation to authorisations under this Schedule which relate to

hospitals and care homes situated in Wales.

170        

It is for the Secretary of State to make regulations under paragraph

161.

25

171        

It is for the National Assembly for Wales to make regulations

under paragraph 162 or 166.

172   (1)  

This paragraph applies to regulations under paragraph 182.

      (2)  

It is for the Secretary of State to make such regulations in relation

to cases where a question as to the ordinary residence of a person

30

is to be determined by the Secretary of State.

      (3)  

It is for the National Assembly for Wales to make such regulations

in relation to cases where a question as to the ordinary residence

of a person is to be determined by the National Assembly.

Part 13

35

Interpretation

Introduction

173        

This Part applies for the purposes of this Schedule.

 

 

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

119

 

Hospitals and their managing authorities

174   (1)  

“Hospital” means—

(a)   

an NHS hospital, or

(b)   

an independent hospital.

      (2)  

“NHS hospital” means—

5

(a)   

a health service hospital as defined by section 275 of the

National Health Service Act 2006 or section 206 of the

National Health Service (Wales) Act 2006, or

(b)   

a hospital as defined by section 206 of the National Health

Service (Wales) Act 2006 vested in a Local Health Board.

10

      (3)  

“Independent hospital” means a hospital as defined by section 2 of

the Care Standards Act 2000 which is not an NHS hospital.

175   (1)  

“Managing authority”, in relation to an NHS hospital, means—

(a)   

if the hospital—

(i)   

is vested in the appropriate national authority for

15

the purposes of its functions under the National

Health Service Act 2006 or of the National Health

Service (Wales) Act 2006, or

(ii)   

consists of any accommodation provided by a local

authority and used as a hospital by or on behalf of

20

the appropriate national authority under either of

those Acts,

   

the Primary Care Trust, Strategic Health Authority, Local

Health Board or Special Health Authority responsible for

the administration of the hospital;

25

(b)   

if the hospital is vested in a Primary Care Trust, National

Health Service trust or NHS foundation trust, that trust;

(c)   

if the hospital is vested in a Local Health Board, that Board.

      (2)  

For this purpose the appropriate national authority is—

(a)   

in relation to England: the Secretary of State;

30

(b)   

in relation to Wales: the National Assembly for Wales;

(c)   

in relation to England and Wales: the Secretary of State and

the National Assembly acting jointly.

176        

“Managing authority”, in relation to an independent hospital,

means the person registered, or required to be registered, under

35

Part 2 of the Care Standards Act 2000 in respect of the hospital.

Care homes and their managing authorities

177        

“Care home” has the meaning given by section 3 of the Care

Standards Act 2000.

178        

“Managing authority”, in relation to a care home, means the

40

person registered, or required to be registered, under Part 2 of the

Care Standards Act 2000 in respect of the care home.

 

 

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

120

 

Supervisory bodies: hospitals

179   (1)  

The identity of the supervisory body is determined under this

paragraph in cases where the relevant hospital is situated in

England.

      (2)  

If a Primary Care Trust commissions the relevant care or

5

treatment, that Trust is the supervisory body.

      (3)  

If the National Assembly for Wales or a Local Health Board

commission the relevant care or treatment, the National Assembly

are the supervisory body.

      (4)  

In any other case, the supervisory body are the Primary Care Trust

10

for the area in which the relevant hospital is situated.

      (5)  

If a hospital is situated in the areas of two (or more) Primary Care

Trusts, it is to be regarded for the purposes of sub-paragraph (4)

as situated in whichever of the areas the greater (or greatest) part

of the hospital is situated.

15

180   (1)  

The identity of the supervisory body is determined under this

paragraph in cases where the relevant hospital is situated in

Wales.

      (2)  

The National Assembly for Wales are the supervisory body.

      (3)  

But if a Primary Care Trust commissions the relevant care or

20

treatment, that Trust is the supervisory body.

Supervisory bodies: care homes

181   (1)  

The identity of the supervisory body is determined under this

paragraph in cases where the relevant care home is situated in

England or in Wales.

25

      (2)  

The supervisory body are the local authority for the area in which

the relevant person is ordinarily resident.

      (3)  

But if the relevant person is not ordinarily resident in the area of a

local authority, the supervisory body are the local authority for the

area in which the care home is situated.

30

      (4)  

In relation to England “local authority” means—

(a)   

the council of a county;

(b)   

the council of a district for which there is no county

council;

(c)   

the council of a London borough;

35

(d)   

the Common Council of the City of London;

(e)   

the Council of the Isles of Scilly.

      (5)  

In relation to Wales “local authority” means the council of a county

or county borough.

      (6)  

If a care home is situated in the areas of two (or more) local

40

authorities, it is to be regarded for the purposes of sub-paragraph

(3) as situated in whichever of the areas the greater (or greatest)

part of the care home is situated.

 

 

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

121

 

182   (1)  

Subsections (5) and (6) of section 24 of the National Assistance Act

1948 (deemed place of ordinary residence) apply to any

determination of where a person is ordinarily resident for the

purposes of paragraph 181 as those subsections apply to such a

determination for the purposes specified in those subsections.

5

      (2)  

In the application of section 24(6) of the 1948 Act by virtue of

subsection (1), section 24(6) is to be read as if it referred to a

hospital vested in a Local Health Board as well as to hospitals

vested in the Secretary of State and the other bodies mentioned in

section 24(6).

10

      (3)  

Any question arising as to the ordinary residence of a person is to

be determined by the Secretary of State or by the National

Assembly for Wales.

      (4)  

The Secretary of State and the National Assembly must make and

publish arrangements for determining which cases are to be dealt

15

with by the Secretary of State and which are to be dealt with by the

National Assembly.

      (5)  

Those arrangements may include provision for the Secretary of

State and the National Assembly to agree, in relation to any

question that has arisen, which of them is to deal with the case.

20

      (6)  

Regulations may make provision about arrangements that are to

have effect before, upon, or after the determination of any

question as to the ordinary residence of a person.

      (7)  

The regulations may, in particular, authorise or require a local

authority to do any or all of the following things—

25

(a)   

to act as supervisory body even though it may wish to

dispute that it is the supervisory body;

(b)   

to become the supervisory body in place of another local

authority;

(c)   

to recover from another local authority expenditure

30

incurred in exercising functions as the supervisory body.

Same body managing authority and supervisory body

183   (1)  

This paragraph applies if, in connection with a particular person’s

detention as a resident in a hospital or care home, the same body

are both—

35

(a)   

the managing authority of the relevant hospital or care

home, and

(b)   

the supervisory body.

      (2)  

The fact that a single body are acting in both capacities does not

prevent the body from carrying out functions under this Schedule

40

in each capacity.

      (3)  

But, in such a case, this Schedule has effect subject to any

modifications contained in regulations that may be made for this

purpose.

 

 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2007
Revised 8 March 2007