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Schedule to Be Inserted as Schedule Aa1 to the Mental Capacity Act 2005

Part of Mental Capacity (Amendment) Bill [Lords] – in the House of Commons at 5:45 pm on 12th February 2019.

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Amendments made: 5, page 8, line 6, leave out from “Wales,” to end of line 10 and insert

“the person registered, or required to be registered, under Chapter 2 of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2) in respect of the provision of a care home service, in the care home;”.

This amendment amends the definition of “care home manager”, in Wales, so it will be the person who is the registered service provider. This mirrors the approach taken for England.

Amendment 6, page 8, line 13, at end insert—

““Education, Health and Care plan” means a plan within the meaning of section 37(2) of the Children and Families Act 2014;”

This amendment is consequential on Amendment 22.

Amendment 7, page 8, leave out line 16

This amendment is consequential on Amendment 13.

Amendment 8, page 8, line 17, at end insert—

““independent hospital” has the meaning given by paragraph 5;”

This amendment is consequential on Amendment 13.

Amendment 9, page 8, line 27, at end insert—

““NHS hospital” has the meaning given by paragraph 5;”

This amendment is consequential on Amendment 13.

Amendment 10, page 8, line 46, leave out “Hospital” and insert “NHS hospital and independent hospital”.

This amendment is consequential on Amendment 13.

Amendment 11, page 8, leave out line 47.

This amendment is consequential on Amendment 13.

Amendment 12, page 9, line 15, after “6” insert “(1)”.

This amendment is consequential on Amendment 18.

Amendment 13, page 9, line 16, leave out “a” and insert “an NHS”.

This amendment amends paragraph 6(a) so that where arrangements are carried out mainly in an independent hospital the responsible body for those arrangements will not be the hospital manager.

Amendment 14, page 9, line 17, at end insert—

(aa) if the arrangements are carried out mainly in an independent hospital in England, the responsible local authority determined in accordance with paragraph 8A;

(ab) if the arrangements are carried out mainly in an independent hospital in Wales, the Local Health Board for the area in which the hospital is situated;”

This amendment makes provision for who the responsible body will be for cases where arrangements are carried out mainly in an independent hospital in England or Wales.

Amendment 15, page 9, line 18, leave out “paragraph (a) does not apply” and insert “none of paragraphs (a) to (ab) applies”.

This amendment is consequential on Amendment 14.

Amendment 16, page 9, line 27, leave out “neither paragraph (a) nor paragraph (b)” and insert “none of paragraphs (a) to (b)”.

This amendment is consequential on Amendment 14.

Amendment 17, page 9, line 28, leave out “(see paragraph 9)” and insert

“determined in accordance with paragraph 9”.

This amendment is consequential on Amendment 14.

Amendment 18, page 9, line 28, at end insert—

‘(2) If an independent hospital is situated in the areas of two or more Local Health Boards, it is to be regarded for the purposes of sub-paragraph (1)(ab) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.”

This amendment provides that, for the purpose of determining who is the responsible body, if a hospital is situated in the areas of two or more Local Health Boards, it should be regarded as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.

Amendment 19, page 9, line 29, after “manager” insert

“, in relation to an NHS hospital,”.

This amendment is consequential on Amendment 13.

Amendment 20, page 9, line 45, at end insert—

(ca) if the hospital is vested in a Local Health Board, that Board.”

This amendment makes provision that the hospital manager for an NHS hospital vested in a Local Health Board will be that Board.

Amendment 21, page 9, line 46, leave out from beginning to end of line 12 on page 10

This amendment is consequential on Amendment 13.

Amendment 22, page 10, line 20, at end insert—

8A (1) In paragraph 6(1)(aa), “responsible local authority”, in relation to a cared-for person aged 18 or over, means—

(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;

(b) if paragraph (a) does not apply and the cared-for person has needs for care and support which are being met under Part 1 of the Care Act 2014, the local authority meeting those needs;

(c) in any other case, the local authority determined in accordance with sub-paragraph (4).

(2) If more than one local authority is meeting the needs of a cared-for person for care and support under Part 1 of the Care Act 2014 the responsible local authority is the local authority for the area in which the cared-for person is ordinarily resident for the purposes of that Part of that Act.

(3) In paragraph 6(1)(aa), “responsible local authority”, in relation to a cared-for person aged 16 or 17, means—

(a) if there is an Education, Health and Care plan for the cared-for person, the local authority responsible for maintaining that plan;

(b) if paragraph (a) does not apply and the cared-for person is being provided with accommodation under section 20 of the Children Act 1989, the local authority providing that accommodation;

(c) if neither paragraph (a) nor paragraph (b) applies and the cared-for person is subject to a care order under section 31 of the Children Act 1989 or an interim care order under section 38 of that Act, and a local authority in England is responsible under the order for the care of the cared-for person, that local authority;

(d) if none of paragraphs (a) to (c) applies, the local authority determined in accordance with sub-paragraph (4).

(4) In the cases mentioned in sub-paragraphs (1)(c) and (3)(d), the “responsible local authority” is the local authority for the area in which the independent hospital mentioned in paragraph 6(1)(aa) is situated.

(5) If an independent hospital is situated in the areas of two or more local authorities, it is to be regarded for the purposes of sub-paragraph (4) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.”

This amendment makes provision as to who the responsible body will be in cases where arrangements are carried out mainly in an independent hospital in England.

Amendment 23, page 11, leave out lines 45 to 47.

This amendment is consequential on Amendment 22.

Amendment 24, page 12, line 19, at end insert—

12A (1) The following must publish information about authorisation of arrangements under this Schedule—

(a) the hospital manager of each NHS hospital;

(b) each clinical commissioning group;

(c) each Local Health Board;

(d) each local authority.

(2) The information must include information on the following matters in particular—

(a) the effect of an authorisation;

(b) the process for authorising arrangements, including making or carrying out—

(i) assessments and determinations required under paragraphs 18 and 19;

(ii) consultation under paragraph 20;

(iii) a pre-authorisation review (see paragraphs 21 to 23);

(c) the circumstances in which an independent mental capacity advocate should be appointed under paragraph 39 or 40;

(d) the role of a person within paragraph 39(5) (an “appropriate person”) in relation to a cared-for person and the effect of there being an appropriate person;

(e) the circumstances in which a pre-authorisation review is to be carried out by an Approved Mental Capacity Professional under paragraph 21;

(f) the right to make an application to the court to exercise its jurisdiction under section 21ZA;

(g) reviews under paragraph 35, including—

(i) when a review will be carried out;

(ii) the rights to request a review;

(iii) the circumstances in which a referral may or will be made to an Approved Mental Capacity Professional.

(3) The information must be accessible to, and appropriate to the needs of, cared-for persons and appropriate persons.

12B (1) Where arrangements are proposed, the responsible body must as soon as practicable take such steps as are practicable to ensure that—

(a) the cared-for person, and

(b) any appropriate person in relation to the cared-for person,

understands the matters mentioned in sub-paragraph (3).

(2) If, subsequently, at any time while the arrangements are being proposed the responsible body becomes satisfied under paragraph 39(5) that a person is an appropriate person in relation to the cared-for person, the responsible body must, as soon as practicable, take such steps as are practicable to ensure that the appropriate person understands the matters mentioned in sub-paragraph (3).

(3) Those matters are—

(a) the nature of the arrangements, and

(b) the matters mentioned in paragraph 12A(2) as they apply in relation to the cared-for person’s case.

(4) If it is not appropriate to take steps to ensure that the cared-for person or any appropriate person understands a particular matter then, to that extent, the duties in sub-paragraphs (1) and (2) do not apply.

(5) In this paragraph “appropriate person”, in relation to a cared-for person, means a person within paragraph 39(5).”

This amendment inserts new paragraphs 12A and 12B of the new Schedule AA1 to require responsible bodies to publish information about authorisation of arrangements under the Schedule and to take steps at the outset of the authorisation process to ensure that cared-for persons and appropriate persons understand the process.

Amendment 25, page 12, line 32, after “practicable” insert

“and appropriate, having regard to the steps taken under paragraph 12B and the length of time since they were taken,”.

This amendment amends the duty in paragraph 13(2) of the new Schedule AA1 for a responsible body to take steps, as soon as arrangements are authorised, to ensure that cared-for persons and appropriate persons understand matters relating to the authorisation, to reflect the fact the body may have already have done that very recently under new paragraph 12B (inserted by Amendment 24).

Amendment 26, page 12, line 33, leave out from “any” to “understands” in line 34 and insert “appropriate person”.

This amendment amends the duty in paragraph 13(2) so that the duty to ensure that cared-for persons and appropriate persons understand matters relating to an authorisation does not also apply to independent mental capacity advocates (who can be expected to understand those matters) in line with the new duty in paragraph 12B (inserted by Amendment 24).

Amendment 27, page 12, line 34, leave out from “understands” to end of line 5 on page 13 and insert

“the matters mentioned in paragraph 12A(2)(a), (c), (d), (f) and (g) as they apply in relation to the cared-for person’s case”.

This amendment aligns the description of matters that must be explained to the cared-for person and any appropriate person with the list of matters in new paragraph 12A (inserted by Amendment 24).

Amendment 28, page 14, line 46, at end insert—

‘(1A) The person who makes the determination need not be the same as the person who carries out the assessment.”

This amendment makes it clear that a determination need not be made by the same person who carries out an assessment. A person could, for example, make a determination based on an assessment carried out previously by a different person (paragraph 18(6) of the new Schedule AA1 allows for this).

Amendment 29, page 14, leave out lines 47 and 48 and insert—

‘(2) The appropriate authority may by regulations make provision for requirements which must be met by a person—

(a) making a determination, or

(b) carrying out an assessment,

under this paragraph.

(2A) Regulations under sub-paragraph (2) may make different provision—

(a) for determinations and assessments, and

(b) for determinations and assessments required under sub-paragraph (1)(a) and determinations and assessments required under sub-paragraph (1)(b).”

This amendment provides power to make regulations setting out requirements which must be met for a person to make a determination or carry out an assessment. The requirements will relate to matters such as knowledge and experience. Different requirements may be set out for a person making a determination than a person carrying out an assessment.

Amendment 30, page 15, line 12, after “the” insert “determination or”.

This amendment is consequential on Amendment 29.

Amendment 31, page 15, line 14, after “the” insert “determination or”.

This amendment is consequential on Amendment 29.

Amendment 32, page 15, line 16, leave out “The” and insert “An”.

This amendment is to make it clear that the assessment being referred to is an assessment on which a determination under the paragraph is made.

Amendment 33, page 15, line 32, leave out “made on an assessment” and insert

“by a person, who meets requirements prescribed by regulations made by the appropriate authority, made on an assessment by that person”.

This amendment is to make it clear that a determination required under paragraph 19 of the new Schedule AA1 must be made by the same person who carries out the assessment on which that determination is based and that person must meet requirements set out in regulations.

Amendment 34, page 15, leave out lines 38 to 44.

This amendment is consequential on Amendment 33.

Amendment 35, page 15, line 46, leave out from “16,” to “by” in line 1 on page 16 and insert

“a determination may not be made”.

This amendment is consequential on Amendment 33.

Amendment 36, page 16, line 7, leave out “assessment” and insert “determination”.

This amendment is consequential on Amendment 33.

Amendment 37, page 16, line 9, leave out “assessment” and insert “determination”.—(Caroline Dinenage.)

This amendment is consequential on Amendment 33.

Amendment proposed: 49, page 16, line 12, leave out from “out” to the end of line 16, and insert “by the responsible body.”—(Barbara Keeley.)

This amendment would require the responsible body to carry out the consultation in all cases.

Question put, That the amendment be made.

The House divided:

Ayes 252, Noes 303.