Clause 4

Mental Capacity (Amendment) Bill [Lords] – in a Public Bill Committee at 2:00 pm on 22nd January 2019.

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Consequential provision etc

Question proposed, That the clause stand part of the Bill.

Photo of Mark Pritchard Mark Pritchard Conservative, The Wrekin

With this it will be convenient to discuss the following:

Government amendments 14 and 15.

That Schedule 2 be the Second schedule to the Bill.

Photo of Caroline Dinenage Caroline Dinenage Minister of State (Department of Health and Social Care)

With your leave, Mr Pritchard, I will speak about amendments 14 and 15 before moving on to the clause stand part debate.

The amendments amend section 36 of the Mental Capacity Act 2005 to ensure that regulations about the functions of independent mental capacity advocates can make provision for advocates appointed under the LPS to support the new role of appropriate person. Amendment 14 also amends sections 38 and 39 of the 2005 Act.

Broadly, the provisions require an IMCA to be appointed when an NHS body or local authority proposes to accommodate a person in a hospital, care home or long-stay residential accommodation and there is no one else to consult about what would be in that person’s best interest. The amendments continue the position under DoLS, so that the duties to appoint an IMCA in sections 38 and 39 will not apply if one has already been appointed under the LPS in relation to the same accommodation. That is to avoid a person having two IMCAs carrying out similar roles. Amendments 14 and 15 also make consequential amendments that reflect the change from the deprivation of liberty safeguards to the liberty protection safeguards.

Clause 4 gives the Secretary of State and Welsh Ministers a regulation-making power to make provision that is consequential to the Bill, including changes to existing legislation. The power will be used to make any necessary consequential changes as a result of the LPS coming into force—for example, to update references to schedule A1, which contains the existing deprivation of liberty safeguards, to references to schedule AA1, where the liberty protection safeguards will be set out.

Finally, clause 4 will introduce schedule 2, which will make minor and consequential amendments that update other legislation to reflect the change from deprivation of liberty safeguards to liberty protection safeguards. I commend the clause and the schedule to the Committee.

Photo of Barbara Keeley Barbara Keeley Shadow Minister (Mental Health and Social Care) 2:15 pm, 22nd January 2019

Government amendments 14 and 15 will alter the power to make regulations under the Mental Capacity Act 2005. It is fair to call them drafting amendments to fill an obvious gap in the Bill that would have left the Government with no way to instruct an independent mental capacity advocate in how to represent an appropriate person. It is a sufficiently large omission for me to wonder how the Government failed to notice it earlier, but I understand that things are missed when a job is being rushed, as the Bill certainly is. However, I am glad to see that the Government are remedying the situation. We support the amendments.

Question put and agreed to.

Clause 4 accordingly ordered to stand part of the Bill.