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back to previous amendments
| | THE BARONESS ASHTON OF UPHOLLAND |
| 81 | Page 20, line 41, leave out "about" and insert "in determining what would be in" |
| 82 | Page 21, line 1, leave out from "must" to end of line 3 and insert "instruct an independent mental capacity advocate to represent P" |
| 83 | Page 21, line 7, leave out subsection (5) and insert— |
| "(5) | The NHS body must, in providing or securing the provision of treatment for P, take into account any information given, or submissions made, by the independent mental capacity advocate." |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 84 | Page 21, line 24, leave out "about" and insert "in determining what would be in" |
| 85 | Page 21, line 27, leave out from "must" to "unless" in line 29 and insert "instruct an independent mental capacity advocate to represent P" |
| 86 | Page 21, line 34, leave out "seek advice from an independent consultee" and insert "instruct an independent mental capacity advocate to represent P" |
| 87 | Page 21, line 42, leave out "seek advice from an independent consultee" and insert "instruct an independent mental capacity advocate to represent P." |
| 88 | Page 21, line 43, leave out subsection (5) and insert— |
| "(5) | The NHS body must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate." |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 89 | Page 22, line 22, leave out "about" and insert "in determining what would be in" |
| 90 | Page 22, line 31, leave out from "must" to "unless" in line 33 and insert "instruct an independent mental capacity advocate to represent P" |
| 91 | Page 22, line 38, leave out from "not" to "before" and insert "instruct an independent mental capacity advocate to represent P" |
| 92 | Page 22, line 45, leave out "seek advice from an independent consultee" and insert "instruct an independent mental capacity advocate to represent P" |
| 93 | Page 23, line 1, leave out subsection (6) and insert— |
| "(6) | The local authority must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate." |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 94 | Page 23, line 5, leave out "36(3) and 37(4)" and insert "36(3) and (4) and 37(4) and (5)" |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 95 | Page 23, line 14, leave out "consultees" and insert "mental capacity advocates" |
| 96 | Page 23, line 19, leave out from "which" to ", and" in line 21 and insert "an independent mental capacity advocate must, or circumstances in which one may, be instructed by a person of a prescribed description to represent a person who lacks capacity" |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 97 | Page 23, line 32, at end insert— |
| "(da) | for the guidance of persons carrying out research as part of a research project approved for the purposes of this Act (and otherwise with respect to the provisions of sections 30 to 33)," |
| 98 | Page 23, line 33, leave out "consultees" and insert "mental capacity advocates" |
| 99 | Page 24, line 5, at end insert— |
| "(ba) | as a person carrying out research as part of a research project approved for the purposes of this Act (see sections 30 to 33)," |
| 100 | Page 24, line 6, leave out "consultee" and insert "mental capacity advocate" |
| | THE LORD GOODHART
THE BARONESS BARKER |
| 101 | Page 24, line 23, at end insert— |
| "( ) | The Lord Chancellor may not issue a code prepared under section 40 unless— |
| (a) | a draft of the code has been laid by him before both Houses of Parliament, and |
| (b) | has been approved by a resolution of each House." |
| 102 | Page 24, line 24, after "code" insert "revised under section 40" |
| 102A | Page 31, line 10, at end insert— |
| "( ) | in conjuction with the Department for Work and Pensions, establishing and maintaining a register of appointees appointed by the Secretary of State for Work and Pensions" |
| 103 | Page 31, line 16, at end insert ", or |
| (iv) | persons who have been the subject of reports under paragraph (i) below," |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 104 | Page 31, line 27, at end insert— |
| "(i) | publishing, in any manner the Public Guardian thinks appropriate, any information he thinks appropriate about the discharge of his functions" |
| 105 | Page 31, line 27, at end insert— |
| "(i) | receiving reports, unsolicited or not, from any person properly concerned that a person may lack capacity and thereby be vulnerable or subject to physical or financial abuse" |
| 105A | Page 31, line 27, at end insert— |
| "(i) | dealing in conjunction with the Department for Work and Pensions with representations (including complaints) about the way in which an appointee is exercising his powers, |
| (j) | informing the Department for Work and Pensions where a lasting power of attorney, or a deputyship is revoked under prescribed circumstances as laid down in regulation, |
| (k) | recording on the register information from the Department for Work and Pensions where an appointeeship is revoked under prescribed circumstances as laid down in regulation" |
| 105B* | Page 31, line 35, at end insert— |
| "( ) | Regulations under this section may not be made unless a draft of the regulations has been laid before and approved by both Houses of Parliament" |
| 105C* | Page 32, line 9, at end insert— |
| "(7) | The Public Guardian will act as trustee in respect of monies received on behalf of those who lack capacity. |
| (8) | In exercising his functions as trustee under subsection (7), the Public Guardian must exercise such care and skill as is reasonable in the circumstances, having regard in particular— |
| (a) | to any special knowledge or experience that he has or holds himself out as having, and |
| (b) | to any special knowledge or experience that it is reasonable to expect of a person acting in the course of that kind of business or profession." |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 106 | Insert the following new Clause— |
| (1) | The Public Guardian must make an annual report to the Lord Chancellor about the discharge of his functions. |
| (2) | The Lord Chancellor must, within one month of receiving the report, lay a copy of it before Parliament." |
| 106A* | Insert the following new Clause— |
| | At least once a year the Lord Chancellor must make a report to Parliament on— |
| (a) | the discharge of the Public Guardian's functions; |
| (b) | the extent to which, in his opinion, the objectives of the office have been met; and |
| (c) | such other matters as the non-executive board may from time to time direct." |
| 106B* | Insert the following new Clause— |
| | "The Board of Public Guardianship Supervision |
| (1) | For the purposes of this Act, there is to be a non-executive board known as the Board of Public Guardianship Supervision. |
| (2) | The Board is to be appointed by the Lord Chancellor. |
| (3) | The Board is to consist of no less than nine members. |
| (4) | The Board must consist of at least two— |
| (a) | registered medical practitioners; and |
| (b) | certified or chartered accountants. |
| (5) | It is the duty of the Board to supervise the Public Guardian in— |
| (a) | the exercise of his functions with regard to this Act; and |
| (b) | on any matter relating to or arising out of the exercise of those functions. |
| (6) | The Public Guardian must make monthly reports to the Board on matters which the Board thinks are relevant and must provide them with such other information as they may reasonably require. |
| (7) | The Board must prepare an annual report on its activities and that report must be included in the annual report of the Lord Chancellor to Parliament." |
| | THE BARONESS ASHTON OF UPHOLLAND |
| 107 | Insert the following new Clause— |
| | "Protective care for certain persons lacking mental capacity |
| (1) | The appropriate authority may make regulations authorising the detention, in prescribed circumstances, of prescribed descriptions of persons who lack capacity, for the purpose of providing them with treatment or care which is determined, in accordance with the regulations, to be in their best interests. |
| (2) | A person who is detained in accordance with the regulations is, for the purposes of this section, in protective care. |
| (3) | The regulations may, in particular, include provision— |
| (a) | as to the premises in which protective care may be provided; |
| (b) | requiring prescribed conditions to be complied with in relation to the provision of protective care; |
| (c) | as to safeguards to be provided for, or in relation to, persons in protective care; |
| (d) | for a person's protective care to be reviewed at prescribed intervals or in prescribed circumstances; |
| (e) | as to the circumstances in which a person's protective care must, and those in which it may, be referred to a prescribed court (or tribunal) for a decision as to whether it should continue; |
| (f) | as to the circumstances in which a person is to be discharged from protective care; |
| (g) | as to the persons by whom powers conferred by the regulations may be exercised; |
| (h) | as to rights of persons in protective care to appeal to such court (or tribunal) as may be prescribed; |
| (i) | as to the powers and functions of a court (or tribunal) to which a reference or appeal is made. |
| (4) | The regulations may also— |
| (a) | include provision similar to that made by section 139 of the Mental Health Act (protection for acts done in pursuance of that Act); |
| (b) | provide for any provision of this Act not to apply for the purposes of the regulations or to apply with prescribed modifications. |
| (5) | "Appropriate authority" means— |
| (a) | in relation to the provision of protective care in Wales, the National Assembly for Wales; |
| (b) | in any other case, the Secretary of State. |
| (6) | "Detention" includes any deprivation of liberty within the meaning of Article 5(1) of the Human Rights Convention." |
| 107A | Insert the following new Clause— |
| | "Protective care for persons lacking mental capacity (No. 2) |
| (1) | P shall not be restrained for any reason such that he is deprived of his liberty within the meaning of Article 5(1) of the Human Rights Convention save as laid down in section 6(6) of this Act or in order to provide treatment or care in accordance with the provisions set out in subsections (3) to (11). |
| (2) | This section shall not apply where P's treatment is regulated by Part 4 of the Mental Health Act (1983) (c. 20). |
| (3) | Sections 5 and 6 this Act do not authorise— |
| (a) | medical treatment to which special safeguards apply; or |
| (b) | the detention of P for care or treatment, save for life-sustaining treatment or actions necessary to prevent a serious deterioration in P's condition, unless he is admitted to the provisions of subsections (4) to (11). |
| (a) | P is not capable of consenting to treatment or admission to care in a care home by virtue of a lack of capacity within the meaning of section 2 and there is no reasonable prospect that he will become capable of doing so, and |
| (b) | he is unlikely to resist the treatment or admission to care, and |
| (c) | it is in P's best interests that he be given the treatment or care, |
| | the person proposing the treatment or care must take and record the steps described in subsection (5). |
| (5) | Authorisation for safeguarded treatments or for detention in a hospital or care home for any treatment or care must be obtained from a registered medical practitioner who is a member of the Expert Panel within 72 hours of admission to hospital or at the earliest practicable time if there is no admission to hospital, who must certify that— |
| (b) | he has consulted P's representative, |
| (c) | the treatment proposed is the least restrictive alternative, and |
| (d) | the conditions described in subsection (4) are met. |
| (6) | If P is detained he or she must be discharged from such detention within five days of admission to detention unless— |
| (a) | the member of the Expert Panel further certifies that he or she should remain in a hospital or care home for care or treatment for a further specified admission, |
| (b) | such further period of detention is in the best interests of the patient, |
| (c) | a care plan is approved by the member of the Expert Panel within 28 days of admission, |
| (d) | such further reviews of the detention are carried out within six months of the admission and at intervals of six months thereafter, each review to be approved by the member of the Expert Panel, who shall also certify that the conditions set out in subsection (5) apply at the date of the review. |
| (7) | P or his representative shall be entitled to apply to the court for an adjudication as to the legality of his detention or the application of the provisions of this section. |
| (8) | P shall not be detained unless the authority (including an independent health or care provider) provides P and his or her representatives with information concerning all the provisions of this section and with information on the right to apply to the court. |
| (9) | P or P's representatives shall be absolutely entitled to legal aid without means or merits test for the purposes of making an application to the court under this section. |
| (10) | For the purposes of this part medical treatments to which safeguards apply ("safeguarded treatments") are all treatments including the withholding or withdrawal of— |
| (a) | electroconvulsive therapy, |
| (b) | the administration of continuous treatment for mental disorder if eight weeks have elapsed since the first occasion in that period when treatment was administered by an means for this mental disorder, |
| (c) | any other serious medical treatment prescribed by the appropriate authority under section 35(6). |
| (11) | P must not be given any of the medical treatment described in subsection (10) if he has made a valid advance decision to refuse the treatment within the meaning of section 25." |
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