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Mental Health Bill [HL]


Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A

116

 

      (3)  

A hospital treatment obligation is an application, order or

direction of a kind listed in the first column of the following table.

      (4)  

In relation to a hospital treatment obligation, the relevant

enactment is the enactment in the Mental Health Act which is

referred to in the corresponding entry in the second column of the

5

following table.

 

Hospital treatment obligation

Relevant

 
  

enactment

 
 

Application for admission for assessment

Section 2

 
 

Application for admission for assessment

Section 4

 

10

 

Application for admission for treatment

Section 3

 
 

Order for remand to hospital

Section 35

 
 

Order for remand to hospital

Section 36

 
 

Hospital order

Section 37

 
 

Interim hospital order

Section 38

 

15

 

Order for detention in hospital

Section 44

 
 

Hospital direction

Section 45A

 
 

Transfer direction

Section 47

 
 

Transfer direction

Section 48

 
 

Hospital order

Section 51

 

20

Community treatment regime

9          

P is subject to the community treatment regime if he is subject to—

(a)   

a community treatment order under section 17A of the

Mental Health Act, or

(b)   

an obligation under another England and Wales

25

enactment which has the same effect as a community

treatment order.

Guardianship regime

10         

P is subject to the guardianship regime if he is subject to—

(a)   

a guardianship application under section 7 of the Mental

30

Health Act,

(b)   

a guardianship order under section 37 of the Mental

Health Act, or

(c)   

an obligation under another England and Wales

enactment which has the same effect as a guardianship

35

application or guardianship order.

 

 

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A

117

 

England and Wales enactments

11    (1)  

An England and Wales enactment is an enactment which extends

to England and Wales (whether or not it also extends elsewhere).

      (2)  

It does not matter if the enactment is in the Mental Health Act or

not.

5

P within scope of Mental Health Act

12    (1)  

P is within the scope of the Mental Health Act if—

(a)   

an application in respect of P could be made under section

2 or 3 of the Mental Health Act, and

(b)   

P could be detained in a hospital in pursuance of such an

10

application, were one made.

      (2)  

The following provisions of this paragraph apply when

determining whether an application in respect of P could be made

under section 2 or 3 of the Mental Health Act.

      (3)  

If the grounds in section 2(2) of the Mental Health Act are met in

15

P’s case, it is to be assumed that the recommendations referred to

in section 2(3) of that Act have been given.

      (4)  

If the grounds in section 3(2) of the Mental Health Act are met in

P’s case, it is to be assumed that the recommendations referred to

in section 3(3) of that Act have been given.

20

      (5)  

In determining whether the ground in section 3(2)(c) of the Mental

Health Act is met in P’s case, it is to be assumed that the treatment

referred to in section 3(2)(c) cannot be provided under this Act.

Authorised course of action, relevant care or treatment & relevant instrument

13         

In a case where this Schedule applies for the purposes of section

25

16A—

“authorised course of action” means any course of action

amounting to deprivation of liberty which the order under

section 16(2)(a) authorises;

“relevant care or treatment” means any care or treatment

30

which—

(a)   

comprises, or forms part of, the authorised course of

action, or

(b)   

is to be given in connection with the authorised

course of action;

35

“relevant instrument” means the order under section 16(2)(a).

14         

In a case where this Schedule applies for the purposes of

paragraph 17 of Schedule A1—

“authorised course of action” means the accommodation of

the relevant person in the relevant hospital or care home

40

for the purpose of being given the relevant care or

treatment;

“relevant care or treatment” has the same meaning as in

Schedule A1;

 

 

Mental Health Bill [HL]
Schedule 7 — Mental Capacity Act 2005: new Schedule 1A

118

 

“relevant instrument” means the standard authorisation

under Schedule A1.

15    (1)  

This paragraph applies where the question whether a person is

ineligible to be deprived of liberty by this Act is relevant to either

of these decisions—

5

(a)   

whether or not to include particular provision (“the

proposed provision”) in an order under section 16(2)(a);

(b)   

whether or not to give a standard authorisation under

Schedule A1.

      (2)  

A reference in this Schedule to the authorised course of action or

10

the relevant care or treatment is to be read as a reference to that

thing as it would be if—

(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

15

read as follows—

(a)   

where the relevant instrument is an order under section

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:

20

as a reference to the standard authorisation as it would be

if it were given.

Expressions used in paragraph 5

16    (1)  

These expressions have the meanings given—

“donee” means a donee of a lasting power of attorney

25

granted by P;

“mental health patient” means a person accommodated in a

hospital for the purpose of being given medical treatment

for mental disorder;

“mental health treatment” means the medical treatment for

30

mental disorder referred to in the definition of “mental

health patient”.

      (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.

35

Expressions with same meaning as in Mental Health Act

17    (1)  

“Hospital” has the same meaning as in Part 2 of the Mental Health

Act.

      (2)  

“Medical treatment” has the same meaning as in the Mental

Health Act.

40

      (3)  

“Mental disorder” has the same meaning as in Schedule A1 (see

paragraph 14).”.

 

 

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

119

 

Schedule 8

Section 38

 

Amendments relating to new section 4A of,

& Schedule A1 to, Mental Capacity Act 2005

Part 1

Other amendments to Mental Capacity Act 2005

5

Introduction

1          

The Mental Capacity Act 2005 (c. 9) is amended as set out in this Part of this

Schedule.

New section 21A

2          

After section 21 insert—

10

“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

Schedule A1—

(a)   

a standard authorisation;

15

(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—

(a)   

whether the relevant person meets one or more of the

qualifying requirements;

20

(b)   

the period during which the standard authorisation is to be in

force;

(c)   

the purpose for which the standard authorisation is given;

(d)   

the conditions subject to which the standard authorisation is

given.

25

(3)   

If the court determines any question under subsection (2), the court

may make an order—

(a)   

varying or terminating the standard authorisation, or

(b)   

directing the supervisory body to vary or terminate the

standard authorisation.

30

(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;

(b)   

the period during which the urgent authorisation is to be in

force;

35

(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—

(a)   

varying or terminating the urgent authorisation, or

 

 

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

120

 

(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

connection with the standard or urgent authorisation before its

5

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

3          

In section 35, in subsection (1) for “and 39” substitute “, 39, 39A and 39C”.

10

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

15

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

20

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

25

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—

30

(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

35

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

40

appointment, engaged in providing care or treatment for P in a

professional capacity or for remuneration.”

 

 

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

121

 

New section 39A

6          

After section 39 insert—

“39A    

Person becomes subject to Schedule A1

(1)   

This section applies if—

(a)   

a person (“P”) becomes subject to Schedule A1, and

5

(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

or for remuneration, whom it would be appropriate to

consult in determining what would be in P’s best interests.

10

(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

15

mental capacity advocate appointed under this section.

(5)   

This section is subject to paragraph 152 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

20

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 either of the following cases.

(3)   

The first case is where an urgent authorisation is given in relation to

25

P under paragraph 69(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

30

authorisation”).

(6)   

The second condition is that no urgent authorisation was given

under paragraph 69(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

35

standard authorisation.

(8)   

The expiry of a standard authorisation is the date when the

authorisation is expected to cease to be in force.

39C     

Person unrepresented whilst subject to Schedule A1

(1)   

This section applies if—

40

(a)   

an authorisation under Schedule A1 is in force in relation to

a person (“P”),

 

 

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

122

 

(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

5

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.

(2)   

The managing authority must notify the supervisory body that this

section applies.

10

(3)   

The supervisory body must instruct an independent mental capacity

advocate to represent P.

(4)   

Paragraph 150 of Schedule A1 makes provision about the role of an

independent mental capacity advocate appointed under this section.

(5)   

The appointment of an independent mental capacity advocate under

15

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

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

20

professional capacity or for remuneration.”

Section 40: Exceptions to duty to appoint IMCAs

7     (1)  

Section 40 is amended as follows.

      (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

25

39C(3)”.

      (4)  

After subsection (1) insert—

“(2)   

A person appointed under Part 10 of Schedule A1 to be P’s

representative is not, by virtue of that appointment, a person

nominated by P as a person to be consulted in matters affecting his

30

interests.”

Section 42: Codes of practice

8     (1)  

Section 42 is amended as follows.

      (2)  

In subsection (1), after paragraph (f) insert—

“(fa)   

for the guidance of persons exercising functions under

35

Schedule A1,

(fb)   

for the guidance of representatives appointed under Part 10

of Schedule A1,”.

      (3)  

In subsection (4), after paragraph (d) insert—

“(da)   

in the exercise of functions under Schedule A1,

40

(db)   

as a representative appointed under Part 10 of Schedule A1,”.

 

 

 
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