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Mental Health Bill [HL]


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

114

 

for a standard authorisation is made (including a time before the

request has been disposed of).

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

5

following to make a selection—

(a)   

the relevant person, if he has capacity in relation to the

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

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select a person;

(c)   

a deputy, if it is within the scope of his authority to select a

person;

(d)   

a best interests assessor;

(e)   

the supervisory body.

15

      (3)  

Regulations under this paragraph may provide that a selection by

the relevant person, a donee or a deputy is subject to approval by

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

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particular representative—

(a)   

the same person may make more than one selection;

(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

25

the standard authorisation in question (including the giving of

that authorisation).

144   (1)  

Appointment regulations may make provision about who may, or

may not, be—

(a)   

selected for appointment as a representative, or

30

(b)   

appointed as a representative.

      (2)  

Regulations under this paragraph may relate to any of the

following matters—

(a)   

a person’s age;

(b)   

a person’s suitability;

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(c)   

a person’s independence;

(d)   

a person’s willingness;

(e)   

a person’s qualifications.

145        

Appointment regulations may make provision about the

formalities of appointing a person as a representative.

40

146        

In a case where a best interests assessor is to select a person to be

appointed as a representative, appointment regulations may

provide for the variation of the assessor’s duties in relation to the

assessment which he is carrying out.

 

 

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

115

 

Monitoring of representatives

147        

Regulations may make provision requiring the managing

authority of the relevant hospital or care home to—

(a)   

monitor, and

(b)   

report to the supervisory body on,

5

           

the extent to which a representative is maintaining contact with

the relevant person.

Termination

148        

Regulations may make provision about the circumstances in

which the appointment of a person as the relevant person’s

10

representative ends or may be ended.

149        

Regulations may make provision about the formalities of ending

the appointment of a person as a representative.

Suspension of representative’s functions

150   (1)  

Regulations may make provision about the circumstances in

15

which functions exercisable by, or in relation to, the relevant

person’s representative (whether under this Schedule or not) may

be—

(a)   

suspended, and

(b)   

if suspended, revived.

20

      (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

suspension or revival of a function.

Payment of representative

25

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

152        

The provisions of this Part which specify provision that may be

30

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

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

35

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.

 

 

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

116

 

Part 11

IMCAs

Application of Part

154        

This Part applies for the purposes of this Schedule.

The IMCAs

5

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.

10

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

15

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—

20

(a)   

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

(b)   

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

(c)   

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

Part 8).

159   (1)  

This paragraph applies if—

25

(a)   

a person is appointed as the relevant person’s

representative, and

(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

30

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

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

person’s representative.

Section 39A IMCA: restriction of functions

160   (1)  

This paragraph applies if—

35

(a)   

there is a section 39A IMCA, and

(b)   

a person is appointed under Part 10 to be the relevant

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

person subsequently appointed, is currently the relevant

person’s representative).

40

 

 

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

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      (2)  

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

39A IMCA do not apply.

      (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.

5

      (4)  

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

exercisable by the section 39A IMCA.

      (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.

10

      (6)  

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

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

account.

      (7)  

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

court to exercise its jurisdiction under section 21A in connection

15

with the giving of the standard authorisation.

Part 12

Miscellaneous

Monitoring of operation of Schedule

161   (1)  

Regulations may make provision for, and in connection with,

20

requiring one or more prescribed bodies to monitor, and report

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

      (2)  

The regulations may, in particular, give a prescribed body

authority to do one or more of the following things—

(a)   

to visit hospitals and care homes;

25

(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.

      (3)  

“Prescribed” means prescribed in regulations under this

30

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.

      (2)  

The National Assembly may direct one or more persons or bodies

35

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

prescribed information to prescribed bodies—

40

(a)   

supervisory bodies;

(b)   

managing authorities of hospitals or care homes.

 

 

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

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      (2)  

“Prescribed” means prescribed in regulations under this

paragraph.

      (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

5

164   (1)  

The National Assembly for Wales may direct a Local Health Board

to exercise in relation to its area any supervisory functions which

are specified in the direction.

      (2)  

Directions under this paragraph must not preclude the National

Assembly from exercising the functions specified in the directions.

10

      (3)  

In this paragraph “supervisory functions” means functions which

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

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

15

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

supervisory functions (“delegated functions”).

      (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

20

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

committee, sub-committee or officer of that Board.

      (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.

25

      (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.

30

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

35

directions includes power to vary or revoke directions given

under that paragraph.

Notices

168        

Any notice under this Schedule must be in writing.

 

 

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

119

 

Regulations

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

5

and care homes situated in England.

      (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

10

161.

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

15

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

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.

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Part 13

Interpretation

Introduction

173        

This Part applies for the purposes of this Schedule.

Hospitals and their managing authorities

25

174   (1)  

“Hospital” means—

(a)   

an NHS hospital, or

(b)   

an independent hospital.

      (2)  

“NHS hospital” means—

(a)   

a health service hospital as defined by section 275 of the

30

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.

      (3)  

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

35

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

the purposes of its functions under the National

40

 

 

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

120

 

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

the appropriate national authority under either of

5

those Acts,

   

the Primary Care Trust, Strategic Health Authority, Local

Health Board or Special Health Authority responsible for

the administration of the hospital;

(b)   

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

10

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;

(b)   

in relation to Wales: the National Assembly for Wales;

15

(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

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

20

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

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

25

Care Standards Act 2000 in respect of the care home.

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.

30

      (2)  

If a Primary Care Trust commissions the relevant care or

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.

35

      (4)  

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

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

40

of the hospital is situated.

180   (1)  

The identity of the supervisory body is determined under this

paragraph in cases where the relevant hospital is situated in

Wales.

 

 

 
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