Mental Capacity (Amendment) Bill [HL] - Committee (3rd Day)

Part of the debate – in the House of Lords at 6:25 pm on 22nd October 2018.

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Moved by Baroness Barker

55: Schedule 1, page 14, leave out lines 17 to 32 and insert—“23(1) An authorisation ceases to have effect—(a) at the end of the period of 12 months beginning with the day it first had effect,(b) at the end of such shorter period determined by the responsible body at the time it determines that the conditions for authorisation are met,(c) on such earlier date than the date given by paragraph (a) as the responsible body may from time to time determine,(d) if the authorisation is renewed in accordance with paragraph 37, at the end of the renewal period, or(e) when a suspension comes to an end as described in paragraph 41(2)(b).(2) An authorisation also ceases to have effect if, at any time, the responsible body believes or ought reasonably to suspect— (a) that the cared-for person has, or has regained, capacity to consent to the arrangements which are authorised,(b) that the cared-for person is no longer of unsound mind, or(c) that the arrangements are no longer necessary and proportionate.(3) But an authorisation does not cease to have effect for the reason described in sub-paragraph (2)(a) if—(a) the capacity assessment which was relied on in determining that the condition in paragraph 14(a) is met states—(i) that the cared-for person’s capacity to consent to arrangements is likely to fluctuate, and(ii) that any periods during which the person is likely to have capacity to consent is likely to last only for a short period of time, and(b) the responsible body reasonably believes that the gaining or regaining of capacity will last only for a short period of time.(4) The Secretary of State must by regulations prescribe a definition of “fluctuate” and “short” for the purposes of sub-paragraph (3)(a)(i), (ii), and (b) above.(5) In a case where—(a) an authorisation relates to arrangements which provide for the cared-for person to reside in, or to receive care or treatment at, a specified place, and(b) at any time, the responsible body believes or ought reasonably to suspect that there is a conflicting decision about the cared-for person residing in, or receiving care or treatment at, that place,the authorisation ceases to have effect in so far as it relates to those arrangements.(6) There is a conflicting decision for the purposes of sub-paragraph (4)(b) if there is a valid decision of—(a) a donee of a lasting power of attorney granted by the cared-for person, or(b) a deputy appointed for the cared-for person by the court,that the cared-for person should not reside in, or (as the case may be) receive care or treatment at, the specified place.(7) If at any time an authorisation relates to arrangements which conflict with requirements arising under legislation relating to mental health, the authorisation ceases to have effect in so far as it relates to those arrangements.”