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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 6:15 pm on 12th February 2019.

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Question accordingly negatived.

Amendments made: 39, page 18, line 7, after “being” insert—

“, and the responsible body for the time being,”

This amendment is to clarify that the responsible body in relation to a cared-for person may change during the lifetime of an authorisation and, if it does, that change is to be recorded in the authorisation record.

Amendment 40, page 20, leave out line 45 and insert—

(a) on a variation under paragraph 34;”

This amendment ensures that a review will take place on a variation under paragraph 34.

Amendment 41, page 21, line 7, after “(4)” insert “or (5A)”.

This provides for a duty to carry out a review in the circumstances described in the new sub-paragraph (5A) (inserted by Amendment 44).

Amendment 42, page 21, line 10, at end insert—

“(3A) A review under sub-paragraph (3)(a) must be carried out before the authorisation is varied or, if that is not practicable or appropriate, as soon as practicable afterwards.”

This amendment provides that a review under sub-paragraph (3)(a) must be carried out before the authorisation is varied, or if that is not practicable or appropriate, it must be carried out as soon as possible after variation.

Amendment 43, page 21, line 18, leave out from “paragraph” to end of line 19 and insert—

“21—

(i) was not by an Approved Mental Capacity Professional, or

(ii) was by an Approved Mental Capacity Professional solely because paragraph 21(2)(c) or (d) applied.”

This amendment expands the duty to refer to an Approved Mental Capacity Professional on a review so it applies in certain cases where a pre-authorisation review under paragraph 21 of the new Schedule AA1 has been carried out by an Approved Mental Capacity Professional.

Amendment 44, page 21, line 26, at end insert—

“(5A) This sub-paragraph applies where sub-paragraph (4) does not apply and—

(a) the arrangements provide for the cared-for person to reside in, or to receive care or treatment at, a specified place,

(b) a relevant person informs the reviewer or (if the reviewer is not the responsible body) the responsible body that they believe that the cared-for person does not wish to reside in, or to receive care or treatment at, that place, and

(c) the relevant person makes a reasonable request to the person informed under paragraph (b) for a review to be carried out.

(5B) In sub-paragraph (5A) “relevant person” means a person engaged in caring for the cared-for person or a person interested in the cared-for person’s welfare.”

This amendment provides for an additional situation which will trigger a duty to review an authorisation.

Amendment 45, page 21, line 32, at end insert—

“(7A) On any review where sub-paragraph (5A) applies, the reviewer or (if the reviewer is not the responsible body) the responsible body may refer the authorisation to an Approved Mental Capacity Professional and, if the Approved Mental Capacity Professional accepts the referral, the Approved Mental Capacity Professional must determine whether the authorisation conditions are met.”

Where a duty to review arises due to the new sub-paragraph (5A) (inserted by Amendment 44) this amendment provides for a power to refer the authorisation to an Approved Mental Capacity Professional.

Amendment 46, page 21, line 33, after “determination” insert

“mentioned in sub-paragraph (7) or (7A)”..—(Caroline Dinenage.)

This amendment is consequential on Amendment 45.

Amendment proposed: 51, page 23, line 1, leave out paragraphs 39 and 40 and insert—

“39 (1) The responsible body must appoint an IMCA to represent and support the cared-for person if–

(a) one or more of sub-paragraphs (2), (3), (4) or (5) applies, and

(b) sub-paragraph (6) does not apply.

(2) The cared-for person makes a request to the responsible body for an IMCA to be appointed.

(3) The responsible body has not identified an “appropriate person” to support and represent the cared-for person in matters connected with the authorisation.

(4) The responsible body has identified an “appropriate person” to support and represent the cared for person in matters connected with the authorisation, and they have made a request to the responsible body for an IMCA to be appointed.

(5) The responsible body has reason to believe one or more of the following—

(a) that, without the help of an IMCA, the cared-for person and any appropriate person supporting and representing them would be unable to understand or exercise one or more of the relevant rights;

(b) that the cared-for person and any appropriate person supporting and representing them have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(c) that the cared for person and any appropriate person supporting and representing them are each unlikely to exercise a relevant right when it would be reasonable to exercise it.

(6) The cared-for person objects to being represented and supported by an IMCA.

(7) A person is not to be regarded as an “appropriate person” to represent and support the cared-for person in matters connected with this schedule unless—

(a) they consent to representing and supporting the cared-for person,

(b) they are not engaged in providing care or treatment for the cared-for person in a professional capacity,

(c) where the cared-for person is able to express a view about who they would like to represent and support them, the cared-for person agree to being represented and supported by that person,

(d) where the cared-for person is unable to express a view about who they would like to represent and support them, the responsible body has no reason to believe that the cared-for person would object to being represented and supported by that person,

(e) they are both willing and able to assist the cared-for person in understanding and exercising the relevant rights under this Schedule, including with the support of an IMCA if appropriate.

(8) The “relevant rights” under this schedule include rights to request a review under Part III of this Schedule, and the right to make an application to the court to exercise its jurisdiction under section 21ZA of this Act.” .—(Barbara Keeley.)

This amendment would broaden the provision of advocacy, ensuring that advocates are provided as a default unless the cared-for person does not want one.

Question put, That the amendment be made.

The House divided:

Ayes 249, Noes 300.