Mental Capacity (Amendment) Act 2019

Section 5(6)

SCHEDULE 2 Minor and consequential amendments

Part 1 Amendments to the Mental Capacity Act 2005

1 The Mental Capacity Act 2005 is amended as follows.

2 Omit—

(a) section 16A;

(b) section 21A and the italic heading before it;

(c) Schedules A1 and 1A.

3 In section 35(1) (appointment of independent mental capacity advocates), for “available to” to the end substitute “available to—

(a) represent and support persons to whom acts or decisions proposed under sections 37, 38 and 39 relate,

(b) represent and support cared-for persons where paragraph 42 of Schedule AA1 applies, and

(c) support appropriate persons where paragraph 43 of Schedule AA1 applies.”

4 (1) Section 36 (functions of independent mental capacity advocates) is amended as follows.

(2) In subsection (2)(a) leave out “(“P”) so that P” and insert “or support so that that person”.

(3) In subsection (2)(c) leave out “P’s wishes and feelings” and insert “the wishes and feelings of the person the advocate has been instructed to represent (“P”)”.

(4) After subsection (2)(d) insert—

“(da) in the case of an advocate instructed to support an appropriate person where paragraph 43 of Schedule AA1 applies, supporting that person to ascertain—

(i) what the wishes and feelings of the cared-for person who that appropriate person represents and supports would be likely to be and the beliefs and values that would be likely to influence the cared-for person;

(ii) what alternative courses of action are available in relation to the cared-for person who that appropriate person represents and supports;”.

5 (1) Section 38 (provision of accommodation by NHS body) is amended as follows.

(2) For subsection (2A) substitute—

“(2A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 42 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the hospital or care home referred to in this section.”

(3) In subsection (3), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (10).

6 (1) Section 39 (provision of accommodation by local authority) is amended as follows.

(2) For subsection (3A) substitute—

“(3A) And this section does not apply if—

(a) an independent mental capacity advocate is appointed under paragraph 42 of Schedule AA1 to represent and support P, and

(b) the arrangements which are authorised or proposed under Schedule AA1 in respect of P include arrangements for P to be accommodated in the residential accommodation referred to in this section.”

(3) In subsection (4), in the opening words, after “arrangements” insert “mentioned in subsection (1)”.

(4) Omit subsection (7).

7 Omit sections 39A to 39E.

8 In section 40 (exceptions)—

(a) in subsection (1), for “, 39(4) or (5), 39A(3), 39C(3) or 39D(2)” substitute “or 39(4) or (5)”;

(b) omit subsection (2).

9 (1) Section 42 (codes of practice) is amended as follows.

(2) In subsection (1) for paragraphs (fa) and (fb) substitute—

“(fa) for the guidance of persons exercising functions under Schedule AA1,

(fb) for the guidance of appropriate persons within paragraph 42(5) of Schedule AA1,”.

(3) In subsection (4) for paragraphs (da) and (db) substitute—

“(da) in the exercise of functions under Schedule AA1,

(db) as an appropriate person within paragraph 42(5) of Schedule AA1,”.

10 In section 50 (applications to the Court of Protection) for subsection (1A) substitute—

“(1A) Nor is permission required for an application to the court under section 21ZA by any independent mental capacity advocate or appropriate person representing and supporting the cared-for person (see Part 5 of Schedule AA1).”

11 In section 64 (interpretation), in subsection (1)—

(a) omit the entry relating to authorisation under Schedule A1, and

(b) in the definition of “local authority”, for “Schedule A1” substitute “Schedule AA1”.

12 (1) Section 65 (rules, regulations etc) is amended as follows.

(2) After subsection (2) insert—

“(2A) Any statutory instrument containing regulations made by the Welsh Ministers under Schedule AA1 is subject to annulment in pursuance of a resolution of the National Assembly for Wales.”

(3) Omit subsections (4A) to (4C).

Part 2 Amendments to other legislation

Mental Health Act 2007 (c. 12)

13 In Part 1 of Schedule 9 to the Mental Health Act 2007 (amendments to Mental Capacity Act 2005) omit paragraphs 2, 5(3), 6, 7(3) and (4), 8, 9, 10(2) and (3) and 11.