Mental Capacity (Amendment) Act 2019 Safeguards Deprivation of liberty: authorisation of arrangements enabling care and treatment 1 1 The Mental Capacity Act 2005 is amended as follows. 2 In section 4A (restriction on deprivation of liberty) for subsection (5) substitute— 5 D may deprive P of liberty if, by doing so, D is carrying out arrangements authorised under Schedule AA1 (arrangements enabling the care and treatment of persons who lack capacity). 3 After section 4B insert— Carrying out of authorised arrangements giving rise to deprivation of liberty 4C 1 This section applies to an act that a person (“D”) does in carrying out arrangements authorised under Schedule AA1. 2 D does not incur any liability in relation to the act that would not have been incurred if the cared-for person— a had had capacity to consent in relation to D doing the act, and b had consented to D doing the act. 3 Nothing in this section excludes a person's civil liability for loss or damage, or a person's criminal liability, resulting from that person's negligence in doing the act. 4 Paragraph 31 of Schedule AA1 applies if an authorisation ceases to have effect in certain cases. 5 “ Cared-for person ” has the meaning given by paragraph 2(1) of that Schedule. 4 Before Schedule 1 insert the Schedule AA1 set out in Schedule 1 to this Act. Deprivation of liberty: authorisation of steps necessary for life-sustaining treatment or vital act 2 For section 4B of the Mental Capacity Act 2005 substitute— Deprivation of liberty necessary for life-sustaining treatment or vital act 4B 1 If Conditions 1 to 4 are met, D is authorised to take steps which deprive P of liberty. 2 Condition 1 is that the steps— a are wholly or partly for the purpose of giving P life-sustaining treatment or doing any vital act, or b consist wholly or partly of giving P life-sustaining treatment or doing any vital act. 3 A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition. 4 Condition 2 is that the steps are necessary in order to give the life-sustaining treatment or do the vital act. 5 Condition 3 is that D reasonably believes that P lacks capacity to consent to D taking the steps. 6 Condition 4 is that— a subsection (7) applies, or b there is an emergency. 7 This subsection applies if— a a decision relevant to whether D is authorised to deprive P of liberty is being sought from the court, or b a responsible body is carrying out functions under Schedule AA1 with a view to determining whether to authorise arrangements that give rise to a deprivation of P's liberty. 8 In subsection (7) it does not matter— a whether the decision mentioned in paragraph (a) relates to the steps mentioned in subsection (1); b whether the arrangements mentioned in paragraph (b) include those steps. 9 There is an emergency if D reasonably believes that— a there is an urgent need to take the steps mentioned in subsection (1) in order to give the life-sustaining treatment or do the vital act, and b it is not reasonably practicable before taking those steps— i to make an application for P to be detained under Part 2 of the Mental Health Act, ii to make an application within subsection (7)(a), or iii to secure that action within subsection (7)(b) is taken. Powers of the court to determine questions 3 After section 21 of the Mental Capacity Act 2005 insert— Powers of the court in relation to Schedule AA1 Powers of court in relation to Schedule AA1 21ZA 1 This section applies where an authorisation under Schedule AA1— a has effect, or b is to have effect from a date specified under paragraph 28 of that Schedule. 2 The court may determine any question relating to— a whether Schedule AA1 applies to the arrangements, or whether the authorisation conditions are met; b what period the authorisation has effect for; c what the authorisation relates to. 3 If the court determines a question under subsection (2), the court may make an order— a varying or terminating the authorisation; b directing the responsible body to vary the authorisation. 4 Where the court makes an order under subsection (3) the court may make an order about a person's liability for anything done in carrying out the arrangements before the variation or termination. 5 An order under subsection (4) may, in particular, exclude a person from liability. 6 “ Authorisation conditions ” has the meaning given by paragraph 13 of Schedule AA1. Code of practice etc Deprivation of liberty: code of practice 4 1 Section 42 of the Mental Capacity Act 2005 (codes of practice) is amended as follows. 2 After subsection (1) insert— 1A Guidance about what kinds of arrangements for enabling the care or treatment of a person fall within paragraph 2(1)(b) of Schedule AA1 must be included in the code, or one of the codes, issued under subsection (1). 3 After subsection (2) insert— 2A Before the end of each review period the Lord Chancellor must— a review each code for the guidance of persons exercising functions under Schedule AA1, and b lay a report of the review before Parliament. But this does not affect the Lord Chancellor's functions under subsection (2). 2B A review period is— a in relation to the first review, the period of 3 years beginning with the day on which this subsection comes into force, and b in relation to subsequent reviews, each period of 5 years beginning with the day on which the report of the previous review was laid before Parliament. 4 In subsection (3) after “preparation” insert “ , review ” . General Consequential provision etc 5 1 The Secretary of State may by regulations make provision that is consequential on any provision made by this Act. 2 Regulations under this section— a may make different provision for different purposes or areas; b may amend, repeal or revoke any provision made by or under an Act passed before this Act or in the same Session. 3 The power to make regulations under this section is exercisable by statutory instrument. 4 Regulations under this section that repeal or amend a provision of an Act may not be made unless a draft of the statutory instrument containing them has been laid before Parliament and approved by a resolution of each House of Parliament. 5 Any other regulations under this section are subject to annulment in pursuance of a resolution of either House of Parliament. 6 Schedule 2 makes minor and consequential amendments. Extent, commencement and short title 6 1 This Act extends to England and Wales only. 2 This section, and section 5 except subsection (6), come into force on the day this Act is passed. 3 The other provisions of this Act come into force— a for the purpose only of enabling the exercise of any power to make regulations, on the day this Act is passed; b for all other purposes, on whatever day the Secretary of State appoints by regulations. 4 Different days may be appointed for different purposes or different areas. 5 The Secretary of State may by regulations make transitional or saving provision in connection with the coming into force of any provision of this Act. 6 Regulations under subsection (5) may make different provision for different purposes or different areas. 7 The power to make regulations under this section is exercisable by statutory instrument. 8 This Act may be cited as the Mental Capacity (Amendment) Act 2019.