Clause 34 - Appointment of independent consultees
Mental Capacity Bill
10:15 am
Mr Alan Hurst (Braintree, Labour)
With this it will be convenient to discuss the following: Amendment No. 171, in
clause 34, page 19, line 16, leave out 'of independent consultees' and insert
'or recognition of independent advocates for the purposes of this Act'.
Amendment No. 172, in
clause 34, page 19, line 17, leave out from 'independent' to end of line 18 and insert 'advocates'.
Amendment No. 173, in
clause 34, page 19, line 20, leave out 'consultee' and insert 'advocate'.
Amendment No. 174, in
clause 34, page 19, line 22, leave out 'consultee' and insert 'advocate'.
Amendment No. 175, in
clause 34, page 19, line 25, leave out 'advice' and insert 'support'.
Amendment No. 176, in
clause 34, page 19, line 42, at end add—
'(9) The provision of assistance may result in the proposed decision or action not taking place under the provisions of this Act.
(10) Nothing in this section obliges P to accept the assistance offered by an independent advocate.'.
Government amendments Nos. 224, 227 and 233.
New clause 3—Advocacy service—
'(1) The appropriate authority must make arrangements to secure advocacy in decisions relating to—
(a) making and reviewing of care programmes
(b) decisions of residence.
(2) the appropriate authority must fully note decisions made in these matters and the reasoning behind them.'.
New clause 4—Duty of care of a local authority—
'Where a local authority have reasonable cause to suspect that an adult who lacks capacity who lives, or is found, in their area is suffering, or likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the adult's welfare.'.
New clause 27—Appointment of independent advocates—
'(1) The appropriate authority must arrange, to such an extent as he considers necessary to maintain the principles set out in section 1 of the Act for independent advocates to be available to assist a person ''P'' when another person ''D'' is considering doing an act, or making a decision to do an act.
(2) The assistance available under the arrangements must include—
(a) Assistance to permit and encourage the individual to participate or improve his ability to participate, as fully as possible in the act proposed to be done or the decision to be made affecting him.
(b) Assistance to express the individual's past and present wishes and feelings, beliefs and values and other factors which he would consider are relevant to the decision or proposed action if he were able to do so.
(c) Assistance to maintain the principles set out in section 1 of this Act.
(3) The appropriate authority may make regulations—
(a) as to the appointment or recognition of independent advocates for the purposes of this Act.
(b) as to the functions of independent advocates in relation to sections New Clauses 2 and 3.
(c) that a person may act as an independent advocate only in such circumstances, or only subject to such conditions, as may be prescribed;
(d) for the appointment of a person as an independent advocate to be subject to approval in accordance with the regulations.
(4) In making arrangements under subsection (1), the appropriate authority must have regard to the principle that support in relation to a proposed act or decision should, so far as practicable, be given by a person who is independent of any person who will be responsible for the act or decision.
(5) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
(a) For the purpose of enabling him to carry out his functions, an independent advocate—
(i) may interview in private the person he has been asked to support and
(ii) may examine any record of a prescribed kind which the person holding the record considers may be relevant to the independent advocate's investigation.
(6) In this section and section 35, ''the appropriate authority'' means—
(a) in relation to the provision of the services of independent advocates in England, the Secretary of State, and
(b) in relation to the provision of the service of independent advocates in Wales, the National Assembly for Wales.'.