Mental Capacity (Amendment) Bill — Advocates — 12 Feb 2019 at 18:15

The majority of MPs voted against ensuring someone is available to represent and support those who are the subject of deprivation of liberty proceedings on the grounds of mental incapacitation. The rejected proposal would not have made advocacy compulsory.

MPs were considering the Mental Capacity (Amendment) Bill^[1].

The amendment rejected in this vote was:

• Amendment 51, page 23, line 1, leave out paragraphs 39 and 40 and insert—
• “39 (1) The responsible body must appoint an IMCA to represent and support the cared-for person if–
• (a) one or more of sub-paragraphs (2), (3), (4) or (5) applies, and
• (b) sub-paragraph (6) does not apply.
• (2) The cared-for person makes a request to the responsible body for an IMCA to be appointed.
• (3) The responsible body has not identified an “appropriate person” to support and represent the cared-for person in matters connected with the authorisation.
• (4) The responsible body has identified an “appropriate person” to support and represent the cared for person in matters connected with the authorisation, and they have made a request to the responsible body for an IMCA to be appointed.
• (5) The responsible body has reason to believe one or more of the following—
• (a) that, without the help of an IMCA, the cared-for person and any appropriate person supporting and representing them would be unable to understand or exercise one or more of the relevant rights;
• (b) that the cared-for person and any appropriate person supporting and representing them have each failed to exercise a relevant right when it would have been reasonable to exercise it;
• (c) that the cared for person and any appropriate person supporting and representing them are each unlikely to exercise a relevant right when it would be reasonable to exercise it.
• (6) The cared-for person objects to being represented and supported by an IMCA.
• (7) A person is not to be regarded as an “appropriate person” to represent and support the cared-for person in matters connected with this schedule unless—
• (a) they consent to representing and supporting the cared-for person,
• (b) they are not engaged in providing care or treatment for the cared-for person in a professional capacity,
• (c) where the cared-for person is able to express a view about who they would like to represent and support them, the cared-for person agree to being represented and supported by that person,
• (d) where the cared-for person is unable to express a view about who they would like to represent and support them, the responsible body has no reason to believe that the cared-for person would object to being represented and supported by that person,
• (e) they are both willing and able to assist the cared-for person in understanding and exercising the relevant rights under this Schedule, including with the support of an IMCA if appropriate.
• (8) The “relevant rights” under this schedule include rights to request a review under Part III of this Schedule, and the right to make an application to the court to exercise its jurisdiction under section 21ZA of this Act.” .

Had it not been rejected the amendment would have impacted Schedule 1 of the Bill which contained a proposed new schedule for the Mental Capacity Act 2005. The element impacted was under the sub-heading: Appointment of Independent Mental Capacity Advocate^[2]. The section which would have been replaced had the amendment been approved provided for responsible bodies not to appoint an Independent Mental Capacity Advocate if they were "satisfied that being represented and supported by an IMCA would not be in the cared-for person’s best interests" but otherwise contained generally similar provisions.

The rejected amendment was accompanied by the following explanatory statement:

• This amendment would broaden the provision of advocacy, ensuring that advocates are provided as a default unless the cared-for person does not want one.
• [1] Parliament's webpage on the Mental Capacity (Amendment) Bill, Parliament.uk
• [2] Page of Parliament's webpage on the Mental Capacity (Amendment) Bill containing the element impacted by this vote, Parliament.uk

Debate in Parliament |