Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005

Part of Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee at 9:25 am on 15th January 2019.

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Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care) 9:25 am, 15th January 2019

I understand where the hon. Lady is coming from. The code of practice will be a living document. It will go alongside the Bill and have case studies. It has to be put together in a very co-operative and collaborative way. It will have to come before both Houses to be signed off before it can be published and released, so there will be plenty of opportunity for Members to get involved in drawing it up. I have committed to providing a list of what we have already agreed will be part of it. Members will get a chance to vote on it before it is published, and it will need the approval of both Houses because it is a statutory document.

We expect that when a person objects to the arrangements, they will also object to the care or treatment being delivered, so we will get an AMCP referral. Considering less restrictive alternatives is a really important aspect of the wider Mental Capacity Act 2005. For example, the fifth principle of the Act requires decision making to have regard to less restrictive options. The cared-for person or their advocate can also challenge the authorisation in the Court of Protection; it is unnecessary for that to be made explicit again in this Bill.

I agree that a person should have the ability to express a wish not to receive care or treatment. However, there is provision in the wider Mental Health Capacity Act for a person to object to the care or treatment given overall. In those situations, a “best interests” decision would need to be made, taking into account wishes and feelings, as set out in the Act. Nothing in this Bill changes that, which is why I ask hon. Members to withdraw their amendments and support the Government amendments.