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Report Stage Proceedings: 18th June 2007                

368

 

Mental Health Bill [Lords], continued

 
 

“76A  

Advance decisions and advance statements

 

(1)    

In this Act—

 

(a)    

reference to an advance decision is to an advance decision

 

(within the meaning of the Mental Capacity Act 2005 (c. 9))

 

made by the patient, and

 

(b)    

“valid and applicable” in relation to such a decision means valid

 

and applicable to the treatment in question in accordance with

 

section 25 of that Act.

 

(2)    

If an advance decision is found to be valid and applicable to the treatment

 

regulated by Part 4 of the 1983 Act, the person providing the treatment

 

shall have regard to the advance decision.

 

(3)    

Where a decision is made which is inconsistent with a valid and

 

applicable advance decision by the person providing treatment, that

 

person must comply with the requirements set out in subsection (4)

 

below.

 

(4)    

Those requirements are—

 

(a)    

the circumstances in which treatment was provided and the

 

reason for it should be recorded in writing; and

 

(b)    

a copy of that record should be supplied to—

 

(i)    

the patient

 

(ii)    

the patient’s nearest relative and another copy placed in

 

the patient’s medical notes.

 

(5)    

A person performing a function under this Act shall consider, so far as

 

reasonably ascertainable the patient’s past and present wishes and

 

feelings (and in particular any relevant written statement made by him

 

when he had capacity).”.

 

(3)    

In section 63 (treatment not requiring consent), at the end, insert—

 

“(2)    

When deciding what treatment to give, the approved clinician in charge

 

of the treatment shall consider so far as reasonably ascertainable the

 

patient’s past and present wishes and feelings (and in particular any

 

relevant written statement made by him when he had capacity), and shall

 

record any treatments requested by the patient in the patient’s medical

 

record, and if that treatment is not given shall record the reasons for

 

this.”.’.

 


 

Transfer of prisoners to hospital

 

Dr John Pugh

 

Sandra Gidley

 

Negatived  NC9

 

To move the following Clause:—

 

‘(1)    

The 1983 Act is amended as follows.


 
 

Report Stage Proceedings: 18th June 2007                

369

 

Mental Health Bill [Lords], continued

 
 

(2)    

In section 47 (Removal to hospital of persons serving sentences of imprisonment,

 

etc.) in subsection (1) after “may”, insert “within 14 days beginning with the date

 

he received the reports.”.’.

 


 

Guilding principles: incorporation in the 1983 Act

 

Dr John Pugh

 

Sandra Gidley

 

Not selected  NC10

 

To move the following Clause:—

 

‘(1)    

Part 1 of the 1983 Act (Application of Act) is amended as follows.

 

(2)    

Before section 1 (Application of Act: “mental disorder”) insert—

 

“A1    

Application of the Act: ‘guiding principles’

 

(1)    

In the discharging of a function by virtue of this Act, a person shall have

 

regard to—

 

(a)    

the importance of the patient participating as fully as is possible

 

in the discharge of the function;

 

(b)    

the present and past wishes and feelings of the patient which are

 

relevant to the discharge of the function; and

 

(c)    

the need to ensure that patients are not subject to unlawful

 

discrimination.

 

(2)    

After having regard to the matters mentioned in subsection (1) above the

 

person shall discharge the function in the manner that involves the

 

minimum restriction on the patient that is necessary in the

 

circumstances.”.’.

 


 

Treatment requiring consent (period of time since administration of treatment)

 

Tim Loughton

 

Angela Browning

 

Sandra Gidley

 

Mr Tim Boswell

 

Mr Charles Walker

 

James Duddridge

 

Negatived on division  NC15

 

To move the following Clause:—

 

‘(1)    

Section 58 of the 1983 Act is amended as follows.

 

(2)    

In subsection (1)(b) leave out “three months” and insert “two months”.’.

 



 
 

Report Stage Proceedings: 18th June 2007                

370

 

Mental Health Bill [Lords], continued

 
 

Nomination of carer as nearest relative

 

Lynne Jones

 

Not called  NC17

 

To move the following Clause:—

 

‘(1)    

The 1983 Act is amended as follows.

 

(2)    

After section 26(4) insert—

 

“(4A)    

Where a person has made an advance nomination with regard to the

 

choice of a relative or other person to be his nearest relative, his nearest

 

relative shall, subject to the power of the court under section 29 to

 

appoint an acting nearest relative, be determined by giving preference to

 

that choice.

 

(4B)    

“Advance nomination” means a nomination made by a person (“P”), after

 

he has reached 18 and when he has capacity to do so and in contemplation

 

that he shall become subject to any act or decision exercisable under the

 

provisions of this Act that his choice of nearest relative shall take

 

precedence over the provisions of subsection (3).

 

(4C)    

For the purposes of subsection (4B) P’s nomination must be his carer as

 

defined by section 1(1)(a) of the Carer’s and Disabled Children Act 2000.

 

(4D)    

For the purposes of section (4B) nomination cannot be made or

 

withdrawn if P is subject to an order under this Act.

 

(4E)    

An advance nomination is not valid if P—

 

(a)    

has withdrawn the decision at a time when he had capacity to do

 

so, or

 

(b)    

has done anything else clearly inconsistent with the advance

 

nomination remaining his fixed decision.

 

(4F)    

An advance nomination is valid only if—

 

(a)    

it is in writing,

 

(b)    

it is signed by P or by another person in P’s presence and by P’s

 

direction,

 

(c)    

the signature is made or acknowledged by P in the presence of a

 

witness, and

 

(d)    

the witness signs it, or acknowledges his signature, in P’s

 

presence.

 

(4G)    

The court may make a declaration as to whether an advance

 

nomination—

 

(a)    

exists; and

 

(b)    

is valid.”.’.

 



 
 

Report Stage Proceedings: 18th June 2007                

371

 

Mental Health Bill [Lords], continued

 
 

Tim Loughton

 

Angela Browning

 

Mr Tim Boswell

 

Mr Charles Walker

 

James Duddridge

 

Andrew Rosindell

 

Not selected  102

 

Page  4,  line  34  [Clause  8],  at end insert—

 

‘(i)    

physical health of the patient’.

 


 

Mr Andrew Dismore

 

Dr Evan Harris

 

Not selected  71

 

Page  8,  line  39  [Clause  12],  at end insert—

 

‘( )    

in subsection (1)—

 

(i)    

in paragraph (a) for “such forms of” substitute “naso-gastric

 

feeding and such other”.’.

 

Mr Andrew Dismore

 

Dr Evan Harris

 

Not selected  72

 

Page  8,  line  39  [Clause  12],  at end insert—

 

‘( )    

in subsection (1)—

 

(ii)    

in paragraph (b) for “one month” substitute “three months”.’.

 


 

Lynne Jones

 

Not called  104

 

Page  15,  line  27  [Clause  23],  leave out ‘or’.

 

Lynne Jones

 

Not called  105

 

Page  15,  line  29  [Clause  23],  at end insert ‘because his appointment poses a risk to

 

the health or well-being of the patient; or

 

(f)    

that in the reasonable opinion of the patient the person is not

 

appropriate.’.

 


 

Ms Secretary Hewitt

 

Agreed to  10

 

Page  17,  line  23  [Clause  27],  after ‘(3)’, insert ‘, (3A)’.

 

Ms Secretary Hewitt

 

Agreed to  11

 

Page  17,  line  24  [Clause  27],  at end insert—


 
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