Mental Health Bill [HL]

moved Amendment No. 71A: 71A: After Clause 39, insert the following new Clause— ““Amendment to section 40 of Mental Capacity Act 2005 In section 40 of the Mental Capacity Act 2005 (exceptions), in paragraph (c), after ““P”” insert ““other than a deputy who has been appointed by the Court for the property and affairs of P in a professional capacity””.”” The noble Baroness said: Noble Lords will be relieved to know that this amendment has absolutely nothing whatever to do with Bournewood. It represents an example of plain opportunism on my part, because it relates to a piece of unfinished business, or business that was missed, from the Mental Capacity Act, and this legislation’s passage through the House provides a very convenient vehicle to which to attach it. The aim of the amendment is to ensure that relevant bodies are required to appoint an independent mental capacity advocate where a court-appointed deputy has been appointed to manage only the property and financial affairs of an individual because there are no suitable family members to act as lay deputies. The essence of the matter is to clarify that, where a deputy acts in a professional capacity purely for financial matters, he or she does not go on to take decisions about a person’s welfare. Love accountants as I do, I do not necessarily believe that they are the people to whom one would turn, if one had capacity, to make decisions about one’s welfare. This is a serious point. In these days when finance and the financing of people’s care is such a complex matter, accountants are appointed. Where there may be potential conflicts of interest, it is extremely important that people who cannot make their own financial decisions are not forced to rely on someone who does not have the necessary qualifications to represent that part of their needs. This is a necessary measure to ensure that people who lack capacity have full protection, particularly for their welfare rights, and it is a matter that the Law Society may thank us for clarifying. I beg to move.