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Mental Health Bill [HL]


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

94

 

      (2)  

The supervisory body must select and appoint a person to carry

out an assessment of whether or not the relevant person is a

detained resident.

      (3)  

But the supervisory body need not select and appoint a person to

carry out such an assessment in either of these cases.

5

      (4)  

The first case is where it appears to the supervisory body that the

request by the eligible person is frivolous or vexatious.

      (5)  

The second case is where it appears to the supervisory body that—

(a)   

the question of whether or not there is an unauthorised

deprivation of liberty has already been decided, and

10

(b)   

since that decision, there has been no change of

circumstances which would merit the question being

decided again.

      (6)  

The supervisory body must not select and appoint a person to

carry out an assessment under this paragraph unless it appears to

15

the supervisory body that the person would be—

(a)   

suitable to carry out a best interests assessment (if one

were obtained in connection with a request for a standard

authorisation relating to the relevant person), and

(b)   

eligible to carry out such a best interests assessment.

20

      (7)  

The supervisory body must notify the persons specified in sub-

paragraph (8)—

(a)   

that the supervisory body have been requested to decide

whether or not there is an unauthorised deprivation of

liberty;

25

(b)   

of their decision whether or not to select and appoint a

person to carry out an assessment under this paragraph;

(c)   

if their decision is to select and appoint a person, of the

person appointed.

      (8)  

The persons referred to in sub-paragraph (7) are—

30

(a)   

the eligible person who made the request under paragraph

68;

(b)   

the managing authority of the relevant hospital or care

home;

(c)   

any section 39A IMCA.

35

70    (1)  

Regulations may be made about the period within which an

assessment under paragraph 69 must be carried out.

      (2)  

Regulations made under paragraph 129(3) apply in relation to the

selection and appointment of a person under paragraph 69 as they

apply to the selection of a person under paragraph 129 to carry out

40

a best interests assessment.

      (3)  

The following provisions apply to an assessment under paragraph

69 as they apply to an assessment carried out in connection with a

request for a standard authorisation—

(a)   

paragraph 131 (examination and copying of records);

45

(b)   

paragraph 132 (representations);

 

 

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

95

 

(c)   

paragraphs 134 and 135(1) and (2) (duty to keep records

and give copies).

      (4)  

The copies of the assessment which the supervisory body are

required to give under paragraph 135(2) must be given as soon as

practicable after the supervisory body are themselves given a copy

5

of the assessment.

71    (1)  

This paragraph applies if—

(a)   

the supervisory body obtain an assessment under

paragraph 69,

(b)   

the assessment comes to the conclusion that the relevant

10

person is a detained resident, and

(c)   

it appears to the supervisory body that the detention of the

person is not authorised as mentioned in section 4A.

      (2)  

This Schedule (including Part 5) applies as if the managing

authority of the relevant hospital or care home had, in accordance

15

with Part 4, requested the supervisory body to give a standard

authorisation in relation to the relevant person.

      (3)  

The managing authority of the relevant hospital or care home

must supply the supervisory body with the information (if any)

which the managing authority would, by virtue of paragraph 31,

20

have had to include in a request for a standard authorisation.

      (4)  

The supervisory body must notify the persons specified in

paragraph 69(8)—

(a)   

of the outcome of the assessment obtained under

paragraph 69, and

25

(b)   

that this Schedule applies as mentioned in sub-paragraph

(2).

72    (1)  

This paragraph applies if—

(a)   

the supervisory body obtain an assessment under

paragraph 69, and

30

(b)   

the assessment comes to the conclusion that the relevant

person is not a detained resident.

      (2)  

The supervisory body must notify the persons specified in

paragraph 69(8) of the outcome of the assessment.

73    (1)  

This paragraph applies if—

35

(a)   

the supervisory body obtain an assessment under

paragraph 69,

(b)   

the assessment comes to the conclusion that the relevant

person is a detained resident, and

(c)   

it appears to the supervisory body that the detention of the

40

person is authorised as mentioned in section 4A.

      (2)  

The supervisory body must notify the persons specified in

paragraph 69(8)—

(a)   

of the outcome of the assessment, and

(b)   

that it appears to the supervisory body that the detention

45

is authorised.”

 

 

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

96

 

Part 5

Urgent authorisations

Managing authority to give authorisation

74         

Only the managing authority of the relevant hospital or care home

may give an urgent authorisation.

5

75         

The managing authority may give an urgent authorisation only if

they are required to do so by paragraph 76 (as read with

paragraph 77).

Duty to give authorisation

76    (1)  

The managing authority must give an urgent authorisation in

10

either of the following cases.

      (2)  

The first case is where—

(a)   

the managing authority are required to make a request

under paragraph 24 or 25 for a standard authorisation, and

(b)   

they believe that the need for the relevant person to be a

15

detained resident is so urgent that it is appropriate for the

detention to begin before they make the request.

      (3)  

The second case is where—

(a)   

the managing authority have made a request under

paragraph 24 or 25 for a standard authorisation, and

20

(b)   

they believe that the need for the relevant person to be a

detained resident is so urgent that it is appropriate for the

detention to begin before the request is disposed of.

      (4)  

References in this paragraph to the detention of the relevant

person are references to the detention to which paragraph 24 or 25

25

relates.

      (5)  

This paragraph is subject to paragraph 77.

77    (1)  

This paragraph applies where the managing authority have given

an urgent authorisation (“the original authorisation”) in

connection with a case where a person is, or is to be, a detained

30

resident (“the existing detention”).

      (2)  

No new urgent authorisation is to be given under paragraph 76 in

connection with the existing detention.

      (3)  

But the managing authority may request the supervisory body to

extend the duration of the original authorisation.

35

      (4)  

Only one request under sub-paragraph (3) may be made in

relation to the original authorisation.

      (5)  

Paragraphs 84 to 86 apply to any request made under sub-

paragraph (3).

 

 

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

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Terms of authorisation

78    (1)  

If the managing authority decide to give an urgent authorisation,

they must decide the period during which the authorisation is to

be in force.

      (2)  

That period must not exceed 7 days.

5

Form of authorisation

79         

An urgent authorisation must be in writing.

80         

An urgent authorisation must state the following things—

(a)   

the name of the relevant person;

(b)   

the name of the relevant hospital or care home;

10

(c)   

the period during which the authorisation is to be in force;

(d)   

the purpose for which the authorisation is given.

81    (1)  

If the name of the relevant hospital or care home changes, the

urgent authorisation is to be read as if it stated the current name of

the hospital or care home.

15

      (2)  

But sub-paragraph (1) is subject to any provision relating to the

change of name which is made in any enactment or in any

instrument made under an enactment.

Duty to keep records and give copies

82    (1)  

This paragraph applies if an urgent authorisation is given.

20

      (2)  

The managing authority must keep a written record of why they

have given the urgent authorisation.

      (3)  

As soon as practicable after giving the authorisation, the

managing authority must give a copy of the authorisation to all of

the following—

25

(a)   

the relevant person;

(b)   

any section 39A IMCA.

Duty to give information about authorisation

83    (1)  

This paragraph applies if an urgent authorisation is given.

      (2)  

The managing authority of the relevant hospital or care home

30

must take such steps as are practicable to ensure that the relevant

person understands all of the following—

(a)   

the effect of the authorisation;

(b)   

the right under section 21A to make an application to the

court.

35

      (3)  

Those steps must be taken as soon as is practicable after the

authorisation is given.

      (4)  

Those steps must include the giving of appropriate information

both orally and in writing.

 

 

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

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Request for extension of duration

84    (1)  

This paragraph applies if the managing authority make a request

under paragraph 77 for the supervisory body to extend the

duration of the original authorisation.

      (2)  

The managing authority must keep a written record of why they

5

have made the request.

      (3)  

The managing authority must give the relevant person notice that

they have made the request.

      (4)  

The supervisory body may extend the duration of the original

authorisation if it appears to them that—

10

(a)   

the managing authority have made the required request

for a standard authorisation,

(b)   

there are exceptional reasons why it has not yet been

possible for that request to be disposed of, and

(c)   

it is essential for the existing detention to continue until the

15

request is disposed of.

      (5)  

The supervisory body must keep a written record that the request

has been made to them.

      (6)  

In this paragraph and paragraphs 85 and 86—

(a)   

“original authorisation” and “existing detention” have the

20

same meaning as in paragraph 77;

(b)   

the required request for a standard authorisation is the

request that is referred to in paragraph 76(2) or (3).

85    (1)  

This paragraph applies if, under paragraph 84, the supervisory

body decide to extend the duration of the original authorisation.

25

      (2)  

The supervisory body must decide the period of the extension.

      (3)  

That period must not exceed 7 days.

      (4)  

The supervisory body must give the managing authority notice

stating the period of the extension.

      (5)  

The managing authority must then vary the original authorisation

30

so that it states the extended duration.

      (6)  

Paragraphs 82(3) and 83 apply (with the necessary modifications)

to the variation of the original authorisation as they apply to the

giving of an urgent authorisation.

      (7)  

The supervisory body must keep a written record of—

35

(a)   

the outcome of the request, and

(b)   

the period of the extension.

86    (1)  

This paragraph applies if, under paragraph 84, the supervisory

body decide not to extend the duration of the original

authorisation.

40

      (2)  

The supervisory body must give the managing authority notice

stating—

(a)   

the decision, and

 

 

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

99

 

(b)   

their reasons for making it.

      (3)  

The managing authority must give a copy of that notice to all of

the following—

(a)   

the relevant person;

(b)   

any section 39A IMCA.

5

      (4)  

The supervisory body must keep a written record of the outcome

of the request.

No variation

87    (1)  

An urgent authorisation may not be varied except in accordance

with paragraph 85.

10

      (2)  

This paragraph does not affect the powers of the Court of

Protection or of any other court.

When an authorisation is in force

88         

An urgent authorisation comes into force when it is given.

89    (1)  

An urgent authorisation ceases to be in force at the end of the

15

period stated in the authorisation in accordance with paragraph

80(c) (subject to any variation in accordance with paragraph 85).

      (2)  

But if the required request is disposed of before the end of that

period, the urgent authorisation ceases to be in force as follows.

      (3)  

If the supervisory body are required by paragraph 50(1) to give the

20

requested authorisation, the urgent authorisation ceases to be in

force when the requested authorisation comes into force.

      (4)  

If the supervisory body are prohibited by paragraph 50(2) from

giving the requested authorisation, the urgent authorisation

ceases to be in force when the managing authority receive notice

25

under paragraph 58.

      (5)  

In this paragraph—

“required request” means the request referred to in

paragraph 76(2) or (3);

“requested authorisation” means the standard authorisation

30

to which the required request relates.

      (6)  

This paragraph does not affect the powers of the Court of

Protection or of any other court.

90    (1)  

This paragraph applies if an urgent authorisation ceases to be in

force.

35

      (2)  

The supervisory body must give notice that the authorisation has

ceased to be in force.

      (3)  

The supervisory body must give that notice to all of the

following—

(a)   

the relevant person;

40

(b)   

any section 39A IMCA.

 

 

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

100

 

      (4)  

The supervisory body must give that notice as soon as practicable

after the authorisation ceases to be in force.

Part 6

Eligibility requirement not met:

suspension of standard authorisation

5

91    (1)  

This Part applies if the following conditions are met.

      (2)  

The first condition is that a standard authorisation—

(a)   

has been given, and

(b)   

has not ceased to be in force.

      (3)  

The second condition is that the managing authority of the

10

relevant hospital or care home are satisfied that the relevant

person has ceased to meet the eligibility requirement.

      (4)  

But this Part does not apply if the relevant person is ineligible by

virtue of paragraph 5 of Schedule 1A (in which case see Part 8).

92         

The managing authority of the relevant hospital or care home

15

must give the supervisory body notice that the relevant person has

ceased to meet the eligibility requirement.

93    (1)  

This paragraph applies if the managing authority give the

supervisory body notice under paragraph 92.

      (2)  

The standard authorisation is suspended from the time when the

20

notice is given.

      (3)  

The supervisory body must give notice that the standard

authorisation has been suspended to the following persons—

(a)   

the relevant person;

(b)   

the relevant person’s representative;

25

(c)   

the managing authority of the relevant hospital or care

home.

94    (1)  

This paragraph applies if, whilst the standard authorisation is

suspended, the managing authority are satisfied that the relevant

person meets the eligibility requirement again.

30

      (2)  

The managing authority must give the supervisory body notice

that the relevant person meets the eligibility requirement again.

95    (1)  

This paragraph applies if the managing authority give the

supervisory body notice under paragraph 94.

      (2)  

The standard authorisation ceases to be suspended from the time

35

when the notice is given.

      (3)  

The supervisory body must give notice that the standard

authorisation has ceased to be suspended to the following

persons—

(a)   

the relevant person;

40

(b)   

the relevant person’s representative;

(c)   

the managing authority of the relevant hospital or care

home.

 

 

 
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