House of Commons Public Bill Committee Proceedings

House of Commons

Session 2006 - 07
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Other Bills before Parliament

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—