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 6 — Mental Capacity Act 2005: new Schedule A1
107

(a)
the change of reason ground, or
(b)
the variation of conditions ground,

this Part does not require the supervisory body to take any action
in respect of the standard authorisation so far as the best interests
requirement relates to it.
5
Mental health, mental capacity, eligibility or no refusals review assessment positive
116   (1)
This paragraph applies if the following conditions are met.
      (2)
The first condition is that one or more of the following are carried
out—
(a)
a mental health review assessment;
10
(b)
a mental capacity review assessment;
(c)
an eligibility review assessment;
(d)
a no refusals review assessment.
      (3)
The second condition is that each assessment carried out comes to
a positive conclusion.
15
      (4)
The supervisory body must decide whether or not each of the
assessed qualifying requirements is reviewable on the change of
reason ground.
      (5)
If the supervisory body decide that any of the assessed qualifying
requirements is reviewable on the change of reason ground, they
20
must vary the standard authorisation so that it states the reason
why the relevant person now meets the requirement or
requirements in question.
      (6)
If the supervisory body decide that none of the assessed qualifying
requirements are reviewable on the change of reason ground, this
25
Part does not require the supervisory body to take any action in
respect of the standard authorisation so far as those requirements
relate to it.
      (7)
An assessed qualifying requirement is a qualifying requirement in
relation to which a review assessment is carried out.
30
One or more review assessments negative
117   (1)
This paragraph applies if one or more of the review assessments
carried out comes to a negative conclusion.
      (2)
The supervisory body must terminate the standard authorisation
with immediate effect.
35
Completion of a review
118   (1)
The review of the standard authorisation is complete in any of the
following cases.
      (2)
The first case is where paragraph 110 applies.
      (3)
The second case is where—
40
(a)
paragraph 111 applies, and

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

(b)
paragraph 117 requires the supervisory body to terminate
the standard authorisation.
      (4)
In such a case, the supervisory body need not comply with any of
the other provisions of paragraphs 114 to 116 which would be
applicable to the review (were it not for this sub-paragraph).
5
      (5)
The third case is where—
(a)
paragraph 111 applies,
(b)
paragraph 117 does not require the supervisory body to
terminate the standard authorisation, and
(c)
the supervisory body comply with all of the provisions of
10
paragraphs 114 to 116 (so far as they are applicable to the
review).
Variations under this Part
119
Any variation of the standard authorisation made under this Part
must be in writing.
15
Notice of outcome of review
120   (1)
When the review of the standard authorisation is complete, the
supervisory body must give notice to all of the following—
(a)
the managing authority of the relevant hospital or care
home;
20
(b)
the relevant person;
(c)
the relevant person’s representative.
      (2)
That notice must state—
(a)
the outcome of the review, and
(b)
what variation (if any) has been made to the authorisation
25
under this Part.
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;
30
(b)
the outcome of each request;
(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.
35
Relationship between review and suspension under Part 6
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.
40
      (3)
If a review has already been requested, or is being carried out,
when the standard authorisation is suspended, no steps are to be

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
109

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
read with paragraph 29), the managing authority of the relevant
5
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
the new standard authorisation has been disposed of.
10
      (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.
124   (1)
This paragraph applies if—
15
(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
standard authorisation which would be in force on or
20
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.
125
In paragraphs 123 and 124—
25
(a)
the existing authorisation is the authorisation referred to in
paragraph 101;
(b)
the expiry of the existing authorisation is the time when it
is expected to cease to be in force.
Part 9
30
Assessments under this Schedule
Introduction
126
This Part contains provision about assessments under this
Schedule.
127
An assessment under this Schedule is either of the following—
35
(a)
an assessment carried out in connection with a request for
a standard authorisation under Part 4;
(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—
40
“assessor” means the person carrying out the assessment;
“relevant procedure” means—
(a)
the request for the standard authorisation, or

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
110

(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
129   (1)
It is for the supervisory body to select a person to carry out an
5
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
the assessment (having regard, in particular, to the type of
10
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
Schedule.
15
      (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
body must not select the same person to carry out both
20
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
eligible, to carry out.
25
130   (1)
This paragraph applies to regulations under paragraph 129(3).
      (2)
The regulations may make provision relating to a person’s—
(a)
qualifications,
(b)
skills,
(c)
training,
30
(d)
experience,
(e)
relationship to, or connection with, the relevant person or
any other person,
(f)
involvement in the care or treatment of the relevant
person,
35
(g)
connection with the supervisory body, or
(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
40
specified by the appropriate authority otherwise than in the
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.
45

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
111

      (5)
The regulations may make provision requiring a person to be
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
5
regulations may limit the number, kind or combination of
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
10
131
An assessor may, at all reasonable times, examine and take copies
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
15
(c)
any record held by a person registered under Part 2 of the
Care Standards Act 2000,

which the assessor considers may be relevant to the assessment
which is being carried out.
Representations
20
132
In carrying out an assessment under this Schedule, the assessor
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;
25
(c)
any section 39C IMCA.
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.
30
      (2)
This Schedule does not require the supervisory body to secure that
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
35
procedure that they are to cease carrying out that assessment.
      (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
40
assessment under this Schedule (whatever conclusions the
assessment has come to).

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
112

      (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.
135   (1)
This paragraph applies to the supervisory body if they are given a
5
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
home;
10
(b)
the relevant person;
(c)
any section 39A IMCA;
(d)
the relevant person’s representative.
      (3)
If—
(a)
the assessment is obtained in relation to a request for a
15
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
they give copies of the authorisation in accordance with
20
paragraph 57.
      (4)
If—
(a)
the assessment is obtained in relation to a request for a
standard authorisation, and
(b)
the supervisory body are prohibited by paragraph 50(2)
25
from giving the standard authorisation,

the supervisory body must give the copies of the assessment when
they give notice in accordance with paragraph 58.
      (5)
If the assessment is obtained in connection with the review of a
standard authorisation, the supervisory body must give the copies
30
of the assessment when they give notice in accordance with
paragraph 120.
136   (1)
This paragraph applies to the supervisory body if—
(a)
they are given a copy of a best interests assessment, and
(b)
the assessment includes, in accordance with paragraph
35
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-
paragraph (3) that the assessment includes such a statement.
      (3)
Those persons are—
40
(a)
the managing authority of the relevant hospital or care
home;
(b)
the relevant person;
(c)
any section 39A IMCA;
(d)
any interested person consulted by the best interests
45
assessor.

Mental Health Bill [HL]
Schedule 6 — Mental Capacity Act 2005: new Schedule A1
113

      (4)
The supervisory body must comply with this paragraph when (or
at some time before) they comply with paragraph 135.
Part 10
Relevant person’s representative
The representative
5
137
In this Schedule the relevant person’s representative is the person
appointed as such in accordance with this Part.
138   (1)
Regulations may make provision about the selection and
appointment of representatives.
      (2)
In this Part such regulations are referred to as “appointment
10
regulations”.
Supervisory body to appoint representative
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.
15
      (2)
The supervisory body must appoint a person to be the relevant
person’s representative if a vacancy arises whilst a standard
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
20
becomes aware of the vacancy.
140   (1)
The selection of a person for appointment under paragraph 139
must not be made unless it appears to the person making the
selection that the prospective representative would, if
appointed—
25
(a)
maintain contact with the relevant person,
(b)
represent the relevant person in matters relating to or
connected with this Schedule, and
(c)
support the relevant person in matters relating to or
connected with this Schedule.
30
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.
      (2)
The functions of any representative are in addition to, and do not
affect—
35
(a)
the authority of any donee,
(b)
the powers of any deputy, or
(c)
any powers of the court.
Appointment regulations
142
Appointment regulations may provide that the procedure for
40
appointing a representative may begin at any time after a request