Mental Health Bill [HL]
THIRD
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
ON REPORT
The amendments have been marshalled in accordance with the Order of 5th February 2007, as follows—
Clause 39
Schedules 6 to 8
Clauses 40 to 42
Schedule 9 | Clauses 43 and 44
Schedule 10
Clauses 45 to 48 |
[Amendments marked * are new or have been altered]
Amendment
No.
| | LORD CARLILE OF BERRIEW
BARONESS NEUBERGER |
| 73 | Page 35, line 25, at end insert— |
| "(6) | P may not be deprived of liberty unless P has been examined and assessed by a registered medical practitioner who is responsible for his care and is satisfied that the following requirements are met— |
| (a) | P has been found to lack mental capacity; |
| (b) | the deprivation of liberty is necessary for P's health or safety; |
| (c) | P's condition is of a nature and degree that requires deprivation of P's liberty and that the restriction of P's freedom is proportionate to the expected benefit to P; |
| (d) | there is appropriate care or treatment available that will benefit P. |
| (7) | Where P has been deprived of his liberty, such deprivation shall not continue unless P's underlying condition remains of a nature and degree that requires such confinement." |
| | BARONESS ASHTON OF UPHOLLAND |
| 74 | Page 37, line 3, leave out subsections (10) and (11) and insert— |
| "(10) | If any function of making subordinate legislation conferred by virtue of any provision of this Part of this Act is transferred to the Welsh Ministers (whether by virtue of subsection (9) or otherwise)— |
| (a) | paragraphs 34 and 35 of Schedule 11 to the Government of Wales Act 2006 do not apply; and |
| (b) | subsections (11) and (12) apply instead. |
| (11) | If a relevant statutory instrument contains regulations under paragraph 122, 154 or 155 of Schedule A1 to the Mental Capacity Act 2005 (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 the National Assembly for Wales. |
| (12) | Subject to that, a relevant statutory instrument is subject to annulment in pursuance of a resolution of the National Assembly for Wales. |
| (13) | In subsections (11) and (12) "relevant statutory instrument" means a statutory instrument containing subordinate legislation made in exercise of a function transferred as mentioned in subsection (10)." |
| | LORD CARLILE OF BERRIEW
BARONESS NEUBERGER |
| 75 | Insert the following new Clause— |
| | "Provision of ordinary and personal care |
| | In the Mental Capacity Act 2005, after section 4B insert— |
| "4C | Provision of ordinary and personal care |
| (1) | Nothing in this Act permits or authorises the withdrawal or withholding of ordinary nursing care or personal care whether or not P has been deprived of his liberty. |
| (2) | For the purposes of this Act— |
| (a) | "ordinary nursing care" means care provided by a registered nurse that does not need supervision by a registered medical practitioner; |
| (b) | "personal care" means care which relates to the day-to-day physical requirements and needs of the person cared for and includes, though is not limited to, the provision of personal hygiene, hydration and nutrition, warmth, shelter, and, where appropriate, assistance with mobility, medication and the maintenance of physical and psychological well being."" |
| | BARONESS BARKER
BARONESS NEUBERGER |
| 75A | Page 73, line 4, at end insert— |
| | "No charges for accommodation, care or treatment provided to P while deprived of liberty |
| | 2A Where the managing authority deprives P of his liberty by detaining him as mentioned in paragraph 1(2), the appropriate NHS body or local authority which has authorised the detention shall make arrangements for the provision of the accommodation with care or treatment, and it shall be free of charge." |
| | BARONESS ASHTON OF UPHOLLAND |
| 76 | Page 76, line 21, at end insert ", or |
| (b) | paragraph 66E applies (right of third party to require consideration of whether authorisation needed)." |
| | BARONESS BARKER
BARONESS NEUBERGER |
| 76A | Page 82, leave out line 3 and insert— |
| "(3) | The maximum length of an initial authorisation must not exceed six months, and the maximum length of any further authorisation must not exceed 1 year." |
| 76B | Page 82, line 21, at end insert— |
| | "45A (1) This paragraph applies— |
| (a) | to the relevant person, or |
| (i) | anyone named by the person as someone to be consulted, |
| (ii) | anyone engaged in caring for the person or interested in his or her welfare, |
| (iii) | any donee of a lasting power of attorney granted by the person, and |
| (iv) | any deputy appointed for the person by the court, |
when they are consulted by the best interests assessor under paragraph 4(7) of the Mental Capacity Act 2005.
| (2) | Any person specified in sub-paragraph (1) has the right to the support of an appointed independent mental capacity advocate during the assessment process." |
| 76C | Page 85, line 24, at end insert— |
| | "58A (1) This paragraph applies if— |
| (a) | a request is made for a standard authorisation, and |
| (b) | the supervisory body are prohibited by paragraph 50(2) from giving the standard authorisation. |
| (2) | The supervisory body must give notice to each of the following— |
| (a) | the managing authority of the relevant hospital or care home; |
| (c) | any section 39A IMCA; |
| (d) | every interested person consulted by the best interests assessor. |
| (3) | If the supervisory body are commissioning the care, they must do so in a manner that makes it possible for the managing authority to provide the care in accordance with the outcome of the assessment process. |
| (4) | The supervisory body should review whether the managing authority is providing the care in accordance with the outcome of the assessment process, and refer any concerns to the relevant inspection body. |
| (3) | The requirements listed in sub-paragraphs (2) to (4) must be complied with by the supervisory body as soon as practicable following the request for a standard authorisation." |
| | BARONESS ASHTON OF UPHOLLAND |
| 77 | Page 87, line 17, at end insert— |
| | "Right of third party to require consideration of whether authorisation needed |
| | 66A For the purposes of paragraphs 66B to 66G there is an unauthorised deprivation of liberty if— |
| (a) | a person is already a detained resident in a hospital or care home, and |
| (b) | the detention of the person is not authorised as mentioned in section 4A. |
| | 66B (1) If the following conditions are met, an eligible person may request the supervisory body to decide whether or not there is an unauthorised deprivation of liberty. |
| (2) | The first condition is that the eligible person has notified the managing authority of the relevant hospital or care home that it appears to the eligible person that there is an unauthorised deprivation of liberty. |
| (3) | The second condition is that the eligible person has asked the managing authority to request a standard authorisation in relation to the detention of the relevant person. |
| (4) | The third condition is that the managing authority has not requested a standard authorisation within a reasonable period after the eligible person asks it to do so. |
| (5) | In this paragraph "eligible person" means any person other than the managing authority of the relevant hospital or care home. |
| | 66C (1) This paragraph applies if an eligible person requests the supervisory body to decide whether or not there is an unauthorised deprivation of liberty. |
| (2) | The supervisory body must select and appoint a person to carry out an assessment of whether or not the relevant person is a detained resident. |
| (3) | But the supervisory body need not select and appoint a person to carry out such an assessment in either of these cases. |
| (4) | The first case is where it appears to the supervisory body that the request by the eligible person is frivolous or vexatious. |
| (5) | The second case is where it appears to the supervisory body that— |
| (a) | the question of whether or not there is an unauthorised deprivation of liberty has already been decided, and |
| (b) | since that decision, there has been no change of circumstances which would merit the question being decided again. |
| (6) | The supervisory body must not select and appoint a person to carry out an assessment under this paragraph unless it appears to the supervisory body that the person would be— |
| (a) | suitable to carry out a best interests assessment (if one were obtained in connection with a request for a standard authorisation relating to the relevant person), and |
| (b) | eligible to carry out such a best interests assessment. |
| (7) | The supervisory body must notify the persons specified in sub-paragraph (8)— |
| (a) | that the supervisory body have been requested to decide whether or not there is an unauthorised deprivation of liberty; |
| (b) | of their decision whether or not to select and appoint a person to carry out an assessment under this paragraph; |
| (c) | if their decision is to select and appoint a person, of the person appointed. |
| (8) | The persons referred to in sub-paragraph (7) are— |
| (a) | the eligible person who made the request under paragraph 66B; |
| (b) | the managing authority of the relevant hospital or care home; |
| (c) | any section 39A IMCA. |
| | 66D (1) Regulations may be made about the period within which an assessment under paragraph 66C must be carried out. |
| (2) | Regulations made under paragraph 122(3) apply in relation to the selection and appointment of a person under paragraph 66C as they apply to the selection of a person under paragraph 122 to carry out a best interests assessment. |
| (3) | The following provisions apply to an assessment under paragraph 66C as they apply to an assessment carried out in connection with a request for a standard authorisation— |
| (a) | paragraph 124 (examination and copying of records); |
| (b) | paragraph 125 (representations); |
| (c) | paragraphs 127 and 128(1) and (2) (duty to keep records and give copies). |
| (4) | The copies of the assessment which the supervisory body are required to give under paragraph 128(2) must be given as soon as practicable after the supervisory body are themselves given a copy of the assessment. |
| | 66E (1) This paragraph applies if— |
| (a) | the supervisory body obtain an assessment under paragraph 66C, |
| (b) | the assessment comes to the conclusion that the relevant person is a detained resident, and |
| (c) | it appears to the supervisory body that the detention of the person is not authorised as mentioned in section 4A. |
| (2) | This Schedule (including Part 5) applies as if the managing authority of the relevant hospital or care home had, in accordance with Part 4, requested the supervisory body to give a standard authorisation in relation to the relevant person. |
| (3) | The managing authority of the relevant hospital or care home must supply the supervisory body with the information (if any) which the managing authority would, by virtue of paragraph 31, have had to include in a request for a standard authorisation. |
| (4) | The supervisory body must notify the persons specified in paragraph 66C(8)— |
| (a) | of the outcome of the assessment obtained under paragraph 66C, and |
| (b) | that this Schedule applies as mentioned in sub-paragraph (2). |
| | 66F (1) This paragraph applies if— |
| (a) | the supervisory body obtain an assessment under paragraph 66C, and |
| (b) | the assessment comes to the conclusion that the relevant person is not a detained resident. |
| (2) | The supervisory body must notify the persons specified in paragraph 66C(8) of the outcome of the assessment. |
| | 66G (1) This paragraph applies if— |
| (a) | the supervisory body obtain an assessment under paragraph 66C, |
| (b) | the assessment comes to the conclusion that the relevant person is a detained resident, and |
| (c) | it appears to the supervisory body that the detention of the person is authorised as mentioned in section 4A. |
| (2) | The supervisory body must notify the persons specified in paragraph 66C(8)— |
| (a) | of the outcome of the assessment, and |
| (b) | that it appears to the supervisory body that the detention is authorised." |
| 78 | Page 101, line 20, at end insert— |
| 79 | Page 101, line 28, at end insert— |
| "(2A) | The provision that the regulations may make in relation to a person's training may provide for particular training to be specified by the appropriate authority otherwise than in the regulations. |
| (2B) | In sub-paragraph (2A) the "appropriate authority" means— |
| (a) | in relation to England: the Secretary of State; |
| (b) | in relation to Wales: the National Assembly for Wales." |
| 80 | Page 103, line 19, at end insert— |
| "128A |
(1) | This paragraph applies to the supervisory body if— |
| (a) | they are given a copy of a best interests assessment, and |
| (b) | the assessment includes, in accordance with paragraph 44(2), a statement that it appears to the assessor that there is an unauthorised deprivation of liberty. |
| (2) | The supervisory body must notify all of the persons listed in sub-paragraph (3) that the assessment includes such a statement. |
| (a) | the managing authority of the relevant hospital or care home; |
| (d) | any interested person consulted by the best interests assessor. |
| (4) | The supervisory body must comply with this paragraph when (or at some time before) they comply with paragraph 128." |
| | BARONESS BARKER
BARONESS NEUBERGER |
| 80A | Page 104, line 10, at end insert— |
| "( ) | The relevant person, or the relevant person's representative, has the right to request the support of an appointed independent mental capacity advocate for the relevant person at any time during the length of the authorisation." |
| 80B | Page 107, line 31, at end insert— |
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