Mental Health Bill [HL]

House of Commons

Session 2006 - 07
Internet Publications
Other Bills before Parliament

Mental Health Bill [HL]

Mental Health Bill [HL]
Schedule 8 — Amendments relating to new section 4A of,& Schedule A1 to, Mental Capacity Act 2005
Part 1 — Other amendments to Mental Capacity Act 2005
129

(5)
Where the court determines any question under subsection (4), the
court may make an order—
(a)
varying or terminating the urgent authorisation, or
(b)
directing the managing authority of the relevant hospital or
care home to vary or terminate the urgent authorisation.
5
(6)
Where the court makes an order under subsection (3) or (5), the court
may make an order about a person’s liability for any act done in
connection with the standard or urgent authorisation before its
variation or termination.
(7)
An order under subsection (6) may, in particular, exclude a person
10
from liability.”
Section 35: Appointment of independent mental capacity advocates
3
In section 35, in subsection (1) for “and 39” substitute “, 39, 39A and 39C”.
Section 38: IMCAs and provision of accommodation by NHS body
4     (1)
Section 38 is amended as follows.
15
      (2)
After subsection (2) insert—
“(2A)
And this section does not apply if—
(a)
an independent mental capacity advocate must be appointed
under section 39A or 39C (whether or not by the NHS body)
to represent P, and
20
(b)
the hospital or care home in which P is to be accommodated
under the arrangements referred to in this section is the
relevant hospital or care home under the authorisation
referred to in that section.”
      (3)
After subsection (9) insert—
25
“(10)
For the purposes of subsection (1), a person appointed under Part 10
of Schedule A1 to be P’s representative is not, by virtue of that
appointment, engaged in providing care or treatment for P in a
professional capacity or for remuneration.”
Section 39: IMCAs and provision of accommodation by local authority
30
5     (1)
Section 39 is amended as follows.
      (2)
After subsection (3) insert—
“(3A)
And this section does not apply if—
(a)
an independent mental capacity advocate must be appointed
under section 39A or 39C (whether or not by the local
35
authority) to represent P, and
(b)
the place in which P is to be accommodated under the
arrangements referred to in this section is the relevant
hospital or care home under the authorisation referred to in
that section.”
40

Mental Health Bill [HL]
Schedule 8 — Amendments relating to new section 4A of,& Schedule A1 to, Mental Capacity Act 2005
Part 1 — Other amendments to Mental Capacity Act 2005
130

      (3)
After subsection (6) insert—
“(7)
For the purposes of subsection (1), a person appointed under Part 10
of Schedule A1 to be P’s representative is not, by virtue of that
appointment, engaged in providing care or treatment for P in a
professional capacity or for remuneration.”
5
New section 39A
6
After section 39 insert—
“39A
Person becomes subject to Schedule A1
(1)
This section applies if—
(a)
a person (“P”) becomes subject to Schedule A1, and
10
(b)
the managing authority of the relevant hospital or care home
are satisfied that there is no person, other than one engaged
in providing care or treatment for P in a professional capacity
or for remuneration, whom it would be appropriate to
consult in determining what would be in P’s best interests.
15
(2)
The managing authority must notify the supervisory body that this
section applies.
(3)
The supervisory body must instruct an independent mental capacity
advocate to represent P.
(4)
Schedule A1 makes provision about the role of an independent
20
mental capacity advocate appointed under this section.
(5)
This section is subject to paragraph 160 of Schedule A1.
(6)
For the purposes of subsection (1), a person appointed under Part 10
of Schedule A1 to be P’s representative is not, by virtue of that
appointment, engaged in providing care or treatment for P in a
25
professional capacity or for remuneration.
39B
Section 39A: supplementary provision
(1)
This section applies for the purposes of section 39A.
(2)
P becomes subject to Schedule A1 in any of the following cases.
(3)
The first case is where an urgent authorisation is given in relation to
30
P under paragraph 76(2) of Schedule A1 (urgent authorisation given
before request made for standard authorisation).
(4)
The second case is where the following conditions are met.
(5)
The first condition is that a request is made under Schedule A1 for a
standard authorisation to be given in relation to P (“the requested
35
authorisation”).
(6)
The second condition is that no urgent authorisation was given
under paragraph 76(2) of Schedule A1 before that request was made.
(7)
The third condition is that the requested authorisation will not be in
force on or before, or immediately after, the expiry of an existing
40
standard authorisation.

Mental Health Bill [HL]
Schedule 8 — Amendments relating to new section 4A of,& Schedule A1 to, Mental Capacity Act 2005
Part 1 — Other amendments to Mental Capacity Act 2005
131

(8)
The expiry of a standard authorisation is the date when the
authorisation is expected to cease to be in force.
(9)
The third case is where, under paragraph 69 of Schedule A1, the
supervisory body select a person to carry out an assessment of
whether or not the relevant person is a detained resident.
5
39C
Person unrepresented whilst subject to Schedule A1
(1)
This section applies if—
(a)
an authorisation under Schedule A1 is in force in relation to
a person (“P”),
(b)
the appointment of a person as P’s representative ends in
10
accordance with regulations made under Part 10 of Schedule
A1, and
(c)
the managing authority of the relevant hospital or care home
are satisfied that there is no person, other than one engaged
in providing care or treatment for P in a professional capacity
15
or for remuneration, whom it would be appropriate to
consult in determining what would be in P’s best interests.
(2)
The managing authority must notify the supervisory body that this
section applies.
(3)
The supervisory body must instruct an independent mental capacity
20
advocate to represent P.
(4)
Paragraph 158 of Schedule A1 makes provision about the role of an
independent mental capacity advocate appointed under this section.
(5)
The appointment of an independent mental capacity advocate under
this section ends when a new appointment of a person as P’s
25
representative is made in accordance with Part 10 of Schedule A1.
(6)
For the purposes of subsection (1), a person appointed under Part 10
of Schedule A1 to be P’s representative is not, by virtue of that
appointment, engaged in providing care or treatment for P in a
professional capacity or for remuneration.”
30
Section 40: Exceptions to duty to appoint IMCAs
7     (1)
Section 40 is amended as follows.
      (2)
The provision of section 40 becomes subsection (1) of section 40.
      (3)
In subsection (1) for “and 39(4) and (5)” substitute “, 39(4) and (5), 39A(3) and
39C(3)”.
35
      (4)
After subsection (1) insert—
“(2)
A person appointed under Part 10 of Schedule A1 to be P’s
representative is not, by virtue of that appointment, a person
nominated by P as a person to be consulted in matters affecting his
interests.”
40
Section 42: Codes of practice
8     (1)
Section 42 is amended as follows.

Mental Health Bill [HL]
Schedule 8 — Amendments relating to new section 4A of,& Schedule A1 to, Mental Capacity Act 2005
Part 1 — Other amendments to Mental Capacity Act 2005
132

      (2)
In subsection (1), after paragraph (f) insert—
“(fa)
for the guidance of persons exercising functions under
Schedule A1,
(fb)
for the guidance of representatives appointed under Part 10
of Schedule A1,”.
5
      (3)
In subsection (4), after paragraph (d) insert—
“(da)
in the exercise of functions under Schedule A1,
(db)
as a representative appointed under Part 10 of Schedule A1,”.
Section 50: Application to the Court of Protection
9
In section 50, after subsection (1) insert—
10
“(1A)
Nor is permission required for an application to the court under
section 21A by the relevant person’s representative.”
Section 64: Interpretation
10    (1)
Section 64 is amended as follows.
      (2)
In subsection (1), insert at the appropriate place—
15
““authorisation under Schedule A1” means either—
(a)
a standard authorisation under that Schedule, or
(b)
an urgent authorisation under that Schedule.”
      (3)
In subsection (1), in the definition of “local authority” after ““local
authority”” insert “, except in Schedule A1,”.
20
      (4)
After subsection (4) insert—
“(5)
In this Act, references to deprivation of a person’s liberty have the
same meaning as in Article 5(1) of the Human Rights Convention.
(6)
For the purposes of such references, it does not matter whether a
person is deprived of his liberty by a public authority or not.”
25
Section 65: Rules, regulations and orders
11    (1)
Section 65 is amended as follows.
      (2)
After subsection (4) insert—
“(4A)
Subsection (2) does not apply to a statutory instrument containing
regulations made by the Secretary of State under Schedule A1.
30
(4B)
If such a statutory instrument contains regulations under paragraph
129, 161 or 163 of Schedule A1 (whether or not it also contains other
regulations), the instrument may not be made unless a draft has been
laid before and approved by resolution of each House of Parliament.
(4C)
Subject to that, such a statutory instrument is subject to annulment in
35
pursuance of a resolution of either House of Parliament.”

Mental Health Bill [HL]
Schedule 8 — Amendments relating to new section 4A of,& Schedule A1 to, Mental Capacity Act 2005
Part 2 — Amendments to other Acts
133

Part 2
Amendments to other Acts
National Assistance Act 1948 (c. 29)
12    (1)
Section 47 of the National Assistance Act 1948 (removal to suitable premises
of persons in need of care and attention) is amended as follows.
5
      (2)
After subsection (1) insert—
“(1A)
But this section does not apply to a person (“P”) in either of the
following cases.
(1B)
The first case is where an order of the Court of Protection authorises
the managing authority of a hospital or care home (within the
10
meaning of Schedule A1 to the Mental Capacity Act 2005) to provide
P with proper care and attention.
(1C)
The second case is where—
(a)
an authorisation under Schedule A1 to the Mental Capacity
Act 2005 is in force, or
15
(b)
the managing authority of a hospital or care home are under
a duty under paragraph 24 of that Schedule to request a
standard authorisation, and

P is, or would be, the relevant person in relation to the
authorisation.”
20
      (3)
This paragraph does not extend to Scotland.
Local Authority Social Services Act 1970 (c. 42)
13    (1)
Schedule 1 to the Local Authority Social Services Act 1970 (Social Services
functions of local authorities) is amended as follows.
      (2)
In the entry relating to the Mental Capacity Act 2005 (c. 9), insert the
25
following entries at the appropriate places—

“Section 39A

Instructing independent mental capacity advocate

when giving an urgent authorisation, or making a

request for a standard authorisation, under

Schedule A1 to the Act.”

30

“Section 39C

Instructing independent mental capacity advocate

when no representative for relevant person under

Part 10 of Schedule A1 to the Act.”

“Schedule A1

Any functions.”