Mental Health Bill [HL]

House of Commons

Session 2006 - 07
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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
128

(a)
the proposed provision were included in the order, or
(b)
the standard authorisation were given.
      (3)
A reference in this Schedule to the relevant instrument is to be
read as follows—
(a)
where the relevant instrument is an order under section
5
16(2)(a): as a reference to the order as it would be if the
proposed provision were included in it;
(b)
where the relevant instrument is a standard authorisation:
as a reference to the standard authorisation as it would be
if it were given.
10
Expressions used in paragraph 5
16    (1)
These expressions have the meanings given—
“donee” means a donee of a lasting power of attorney
granted by P;
“mental health patient” means a person accommodated in a
15
hospital for the purpose of being given medical treatment
for mental disorder;
“mental health treatment” means the medical treatment for
mental disorder referred to in the definition of “mental
health patient”.
20
      (2)
A decision of a donee or deputy is valid if it is made—
(a)
within the scope of his authority as donee or deputy, and
(b)
in accordance with Part 1 of this Act.
Expressions with same meaning as in Mental Health Act
17    (1)
“Hospital” has the same meaning as in Part 2 of the Mental Health
25
Act.
      (2)
“Medical treatment” has the same meaning as in the Mental
Health Act.
      (3)
“Mental disorder” has the same meaning as in Schedule A1 (see
paragraph 14).”.
30
Schedule 8
Section 45

Amendments relating to new section 4A of,
& Schedule A1 to, Mental Capacity Act 2005
Part 1
Other amendments to Mental Capacity Act 2005
35
Introduction
1
The Mental Capacity Act 2005 (c. 9) is amended as set out in this Part of this
Schedule.

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

New section 21A
2
After section 21 insert—
“Powers of the court in relation to Schedule A1
21A
Powers of court in relation to Schedule A1
(1)
This section applies if either of the following has been given under
5
Schedule A1—
(a)
a standard authorisation;
(b)
an urgent authorisation.
(2)
Where a standard authorisation has been given, the court may
determine any question relating to any of the following matters—
10
(a)
whether the relevant person meets one or more of the
qualifying requirements;
(b)
the period during which the standard authorisation is to be in
force;
(c)
the purpose for which the standard authorisation is given;
15
(d)
the conditions subject to which the standard authorisation is
given.
(3)
If the court determines any question under subsection (2), the court
may make an order—
(a)
varying or terminating the standard authorisation, or
20
(b)
directing the supervisory body to vary or terminate the
standard authorisation.
(4)
Where an urgent authorisation has been given, the court may
determine any question relating to any of the following matters—
(a)
whether the urgent authorisation should have been given;
25
(b)
the period during which the urgent authorisation is to be in
force;
(c)
the purpose for which the urgent authorisation is given.
(5)
Where the court determines any question under subsection (4), the
court may make an order—
30
(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.
(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
35
connection with the standard or urgent authorisation before its
variation or termination.
(7)
An order under subsection (6) may, in particular, exclude a person
from liability.”
Section 35: Appointment of independent mental capacity advocates
40
3
In section 35, in subsection (1) for “and 39” substitute “, 39, 39A and 39C”.

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

Section 38: IMCAs and provision of accommodation by NHS body
4     (1)
Section 38 is amended as follows.
      (2)
After subsection (2) insert—
“(2A)
And this section does not apply if—
(a)
an independent mental capacity advocate must be appointed
5
under section 39A or 39C (whether or not by the NHS body)
to represent P, and
(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
10
referred to in that section.”
      (3)
After subsection (9) insert—
“(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
15
professional capacity or for remuneration.”
Section 39: IMCAs and provision of accommodation by local authority
5     (1)
Section 39 is amended as follows.
      (2)
After subsection (3) insert—
“(3A)
And this section does not apply if—
20
(a)
an independent mental capacity advocate must be appointed
under section 39A or 39C (whether or not by the local
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
25
hospital or care home under the authorisation referred to in
that section.”
      (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
30
appointment, engaged in providing care or treatment for P in a
professional capacity or for remuneration.”
New section 39A
6
After section 39 insert—
“39A
Person becomes subject to Schedule A1
35
(1)
This section applies if—
(a)
a person (“P”) becomes subject to Schedule A1, and
(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
40
or for remuneration, whom it would be appropriate to
consult in determining what would be in P’s best interests.

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

(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
5
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
10
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
15
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
20
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
25
standard authorisation.
(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
30
whether or not the relevant person is a detained resident.
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”),
35
(b)
the appointment of a person as P’s representative ends in
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
40
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.

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)
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)
Paragraph 158 of Schedule A1 makes provision about the role of an
5
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
representative is made in accordance with Part 10 of Schedule A1.
(6)
For the purposes of subsection (1), a person appointed under Part 10
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 40: Exceptions to duty to appoint IMCAs
7     (1)
Section 40 is amended as follows.
15
      (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)”.
      (4)
After subsection (1) insert—
“(2)
A person appointed under Part 10 of Schedule A1 to be P’s
20
representative is not, by virtue of that appointment, a person
nominated by P as a person to be consulted in matters affecting his
interests.”
Section 42: Codes of practice
8     (1)
Section 42 is amended as follows.
25
      (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,”.
30
      (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—
35
“(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.

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

      (2)
In subsection (1), insert at the appropriate place—
““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
5
authority”” insert “, except in Schedule A1,”.
      (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
10
person is deprived of his liberty by a public authority or not.”
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
15
regulations made by the Secretary of State under Schedule A1.
(4B)
If such a statutory instrument contains regulations under paragraph
42(2)(b), 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
20
House of Parliament.
(4C)
Subject to that, such a statutory instrument is subject to annulment in
pursuance of a resolution of either House of Parliament.”
Part 2
Amendments to other Acts
25
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.
      (2)
After subsection (1) insert—
“(1A)
But this section does not apply to a person (“P”) in either of the
30
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
meaning of Schedule A1 to the Mental Capacity Act 2005) to provide
P with proper care and attention.
35
(1C)
The second case is where—
(a)
an authorisation under Schedule A1 to the Mental Capacity
Act 2005 is in force, or

Mental Health Bill [HL]
Schedule 9 — Transitional provisions and savings
134

(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.”
5
      (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
10
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.”

15

“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.”

Schedule 9
20
Section 48

Transitional provisions and savings
Interpretation
1     (1)
This Schedule is to be read as follows.
      (2)
Reference to an enactment is to an enactment contained in this Act, unless
otherwise stated.
25
      (3)
Reference to an enactment contained in the 1983 Act includes reference to
that enactment as applied by section 40(4) of that Act (patients concerned in
criminal proceedings or under sentence).
Authority to detain etc
2     (1)
The provisions mentioned in sub-paragraph (4) do not affect—
30
(a)
the authority for the detention or guardianship of a person who is
liable to be detained or subject to guardianship under the 1983 Act
immediately before the date on which those provisions come into
force,