Mental Capacity Bill
REVISED
SECOND
MARSHALLED
LIST OF AMENDMENTS
TO BE MOVED
ON REPORT
The amendments have been marshalled in accordance with the revised Order of 10th March 2005, as follows—
Clauses 4 to 9
Schedule 1
Clauses 10 to 18
Schedule 2
Clauses 19 to 57
Clause 59 | Schedule 3
Clauses 60 to 62
Schedules 4 and 5
Clause 63
Schedules 6 and 7
Clauses 64 and 65 |
[Amendments marked * are new or have been altered]
Amendment
No.
| | THE BARONESS ASHTON OF UPHOLLAND |
| 8 | Page 3, line 17, after "feelings", insert "(and, in particular, any relevant written statement made by him when he had capacity)" |
| | THE BARONESS CHAPMAN
THE BARONESS MASHAM OF ILTON
THE BARONESS KNIGHT OF COLLINGTREE
THE LORD ALTON OF LIVERPOOL |
| 9 | Page 3, line 39, at end insert— |
| "( ) | Nothing in this Act shall permit the withdrawing or withholding from any person of nutrition or hydration, howsoever provided, save where the provision thereof would itself cause harm or burden to the person greater than if the nutrition or hydration were not provided." |
| | THE BARONESS CHAPMAN
THE LORD ALTON OF LIVERPOOL |
| 9A | Page 3, line 44, at end insert— |
| "(12) | Nothing in this Act, permits or authorises a decision to withdraw or withhold from any person ("P") life-sustaining treatment, nutrition or hydration, howsoever provided, save where the provision thereof would itself cause harm or a burden to P greater than the harm P would suffer if the life-sustaining treatment, nutrition or hydration were not provided." |
| | THE BARONESS KNIGHT OF COLLINGTREE
THE BARONESS MASHAM OF ILTON
THE LORD ALTON OF LIVERPOOL |
| 10 | Page 4, line 16, at end insert— |
| "( ) | Nothing in this Act shall place any person, whether a healthcare professional or not, under any duty, whether by contract or by any statutory or other legal requirement, to participate in any way in the withholding or withdrawing from P of— |
| (a) | any life-sustaining treatment, or |
| (b) | nutrition or hydration, however provided, |
| | where that person has a conscientious objection to such withholding or withdrawing." |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 11 | Page 4, line 28, at end insert— |
| "( ) | But D does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention (whether or not D is a public authority)." |
| | THE LORD GOODHART
THE BARONESS BARKER |
| 12 | Page 5, line 2, at end insert— |
| "(3) | Subject to subsections (1) and (4), a contract purportedly entered into by a person who lacks capacity to enter into the contract is not enforceable against that person and may be set aside on an application to a court made by or on behalf of that person. |
| (4) | Subsection (3) shall not apply if the following conditions are satisfied— |
| (a) | the terms of the contract are fair to the person lacking capacity, |
| (b) | no other party to the contract knew or should have known that that person lacked or might lack capacity, and |
| (c) | failure to enforce the contract against that person or the setting aside of the contract will cause loss or hardship to another party to the contract. |
| (5) | It shall be for a party seeking to enforce the contract or objecting to its being set aside to prove that the conditions in subsection (4) are satisfied." |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 13 | Page 5, line 36, leave out "section" and insert "sections 1 (the principles) and" |
| 14 | Page 36, line 32, after "persons" insert "additional to the designated relatives" |
| 15 | Page 36, line 35, after "no" insert "additional" |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 16 | Page 37, line 5, leave out from "the" to "4" in line 6 and insert "duties imposed on a donee of a lasting power of attorney under sections 1 (the principles) and" |
| 17 | Page 37, line 22, after "Schedule" insert— |
| 18 | Page 37, line 23, at end insert ", and |
| | "designated relative" means a person entitled by virtue of paragraph 6A to receive notice of an application for the registration of an instrument intended to create a lasting power of attorney" |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 19 | Page 38, line 5, after "severally" insert "in respect of any matter" |
| 20 | Page 38, line 16, leave out "11" and insert "10A" |
| 21 | Page 38, line 20, after "any" insert "designated relatives and" |
| 22 | Page 38, line 22, after "any" insert "designated relatives and" |
| 23 | Page 38, line 22, at end insert— |
| | "6A (1) Subject to the limitations contained in sub-paragraphs (2) to (5) below, persons of the following classes are entitled to receive notice under paragraph 6(1) or (2)— |
| (a) | the donor's spouse or civil partner, |
| (b) | the donor's children, |
| (d) | the donor's brothers and sisters, whether of the whole or half blood, |
| (e) | the widow, widower or surviving civil partner of a child of the donor, |
| (f) | the donor's grandchildren, |
| (g) | the children of the donor's brothers and sisters of the whole blood, |
| (h) | the children of the donor's brothers and sisters of the half blood, |
| (i) | the donor's uncles and aunts of the whole blood, and |
| (j) | the children of the donor's uncles and aunts of the whole blood. |
| (2) | A person is not entitled to receive notice under paragraph 6(1) if— |
| (a) | his name or address is not known to the donor and cannot be reasonably ascertained by him, or |
| (b) | the donor has reason to believe that he has not attained 18 years or lacks capacity to understand the notice. |
| (3) | A person is not entitled to receive notice under paragraph 6(2) if— |
| (a) | his name or address is not known to the donee and cannot be reasonably ascertained by him, or |
| (b) | the donor has reason to believe that he has not attained 18 years or lacks capacity to understand the notice. |
| (4) | Except where sub-paragraph (5) applies, no more than three persons are entitled to receive notice as designated relatives under paragraph 6(1) or (2) and, in determining the persons who are so entitled— |
| (a) | persons falling within paragraph (a) of sub-paragraph (1) are to be preferred to persons falling with paragraph (b) of that sub-paragraph, persons falling within paragraph (b) are to be preferred to persons falling within paragraph (c) of that sub-paragraph; and so on, and |
| (b) | the fact that a person qualifying for notice under this paragraph would also be entitled to notice as a named person shall be ignored. |
| (5) | Notwithstanding the limit of three specified in sub-paragraph (4), where— |
| (a) | there is more than one person falling within any paragraphs (a) to (j) of sub-paragraph (1), and |
| (b) | at least one of those persons would be entitled to receive notice under sub-paragraph 6(1) or (2), |
| | then, subject to sub-paragraphs (2) and (3), all the persons falling within that class are entitled to receive notice under sub-paragaph 6(1) or (2)." |
| 24 | Page 38, line 22, at end insert— |
| | "6B A donee is not required to give notice under paragraph 6(2)— |
| (b) | to any other donee under the instrument who is joining in making the application, |
| | even though he, or as the case may be, the other donee is entitled to receive notice by virtue of paragraph 6A." |
| 25 | Page 38, line 38, at beginning insert— |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 26 | Page 38, line 43, at end insert— |
| | "Instrument not made properly or containing ineffective provision |
| | 10A (1) If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, he must not register the instrument unless the court directs him to do so. |
| (2) | Sub-paragraph (3) applies if it appears to the Public Guardian that the instrument contains a provision which— |
| (a) | would be ineffective as part of a lasting power of attorney, or |
| (b) | would prevent the instrument from operating as a valid lasting power of attorney. |
| (a) | must apply to the court for it to determine the matter under section 23(1), and |
| (b) | pending the determination by the court, must not register the instrument. |
| (4) | Sub-paragraph (5) applies if the court determines under section 23(1) (whether or not on an application by the Public Guardian) that the instrument contains a provision which— |
| (a) | would be ineffective as part of a lasting power of attorney, or |
| (b) | would prevent the instrument from operating as a valid lasting power of attorney. |
| (a) | notify the Public Guardian that it has severed the provision, or |
| (b) | direct him not to register the instrument. |
| (6) | Where the court notifies the Public Guardian that it has severed a provision, he must register the instrument with a note to that effect attached to it." |
| 27 | Page 38, line 43, at end insert— |
| (a) | on the application of the donor dispense with the requirement to notify a designated relative under paragraph 6(1), or |
| (b) | on the application of the donee or donees concerned, dispense with the requirement to notify a designated relative under paragraph 6(2), |
| | that no useful purpose would be served by giving the notice." |
| 28 | Page 39, line 10, after "donee" insert "or a designated relative" |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 29 | Page 39, line 17, leave out sub-paragraph (2) and insert— |
| "(2) | If the Public Guardian is satisfied that the ground for making the objection is established, he must not register the instrument unless the court, on the application of the person applying for the registration— |
| (a) | is satisfied that the ground is not established, and |
| (b) | directs the Public Guardian to register the instrument." |
| 30 | Page 39, line 19, after "donee" insert "or a designated relative" |
| 31 | Page 39, line 26, leave out sub-paragraph (4) and insert— |
| "(4) | The Public Guardian must not register the instrument unless the court, on the application of the person objecting to the registration— |
| (a) | is satisfied that the ground is not established, and |
| (b) | directs the Public Guardian to register the instrument" |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 32 | Page 40, line 28, at end insert— |
| | "17A (1) Sub-paragraph (2) applies if the court determines under section 23(1) that a lasting power of attorney contains a provision which— |
| (a) | is ineffective as part of a lasting power of attorney, or |
| (b) | prevents the instrument from operating as a valid lasting power of attorney. |
| (a) | notify the Public Guardian that it has severed the provision, or |
| (b) | direct him to cancel the registration of the instrument as a lasting power of attorney." |
| 33 | Page 41, line 10, at end insert— |
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