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Mental Capacity Act 2005

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[F1Part 13E+WInterpretation

Textual Amendments

F1Sch. A1 omitted (16.5.2019 for specified purposes) by virtue of Mental Capacity (Amendment) Act 2019 (c. 18), s. 6(3), Sch. 2 para. 2(c)

IntroductionE+W

174This Part applies for the purposes of this Schedule.

Hospitals and their managing authoritiesE+W

175(1)Hospital ” means— E+W

(a)an NHS hospital, or

(b)an independent hospital.

(2)NHS hospital ” means—

(a)a health service hospital as defined by section 275 of the National Health Service Act 2006 or section 206 of the National Health Service (Wales) Act 2006, or

(b)a hospital as defined by section 206 of the National Health Service (Wales) Act 2006 vested in a Local Health Board.

[F2(3)Independent hospital”—

(a)in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not an NHS hospital; and

(b)in relation to Wales, means a hospital as defined by section 2 of the Care Standards Act 2000 that is not an NHS hospital.]F2

176(1)Managing authority ”, in relation to an NHS hospital, means— E+W

(a)if the hospital—

(i)is vested in the appropriate national authority for the purposes of its functions under the National Health Service Act 2006 or of the National Health Service (Wales) Act 2006, or

(ii)consists of any accommodation provided by a local authority and used as a hospital by or on behalf of the appropriate national authority under either of those Acts,

theF3... F4... Local Health Board or Special Health Authority responsible for the administration of the hospital;

[F5(aa)in relation to England, if the hospital falls within paragraph (a)(i) or (ii) and no Special Health Authority has responsibility for its administration, the Secretary of State;]

(b) if the hospital is vested in a F6 ... National Health Service trust or NHS foundation trust, that trust;

(c)if the hospital is vested in a Local Health Board, that Board.

(2)For this purpose the appropriate national authority is—

(a)in relation to England: the Secretary of State;

(b)in relation to Wales: the National Assembly for Wales;

(c)in relation to England and Wales: the Secretary of State and the National Assembly acting jointly.

Textual Amendments

F3Words in Sch. A1 para. 176(1)(a) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 136(2)(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F4Words in Sch. A1 para. 176(1)(a) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 136(2)(b); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F6Words in Sch. A1 para. 176(1)(b) omitted (1.4.2013) by virtue of Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 136(2)(d); S.I. 2013/160, art. 2(2) (with arts. 7-9)

[F7177Managing authority ”, in relation to an independent hospital, means—

(a)in relation to England, the person registered, or required to be registered, under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of regulated activities (within the meaning of that Part) carried on in the hospital, and

(b)in relation to Wales, the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the hospital.]F7

Care homes and their managing authoritiesE+W

[F8178.“Care home” means—

(a)a care home in England within the meaning given by section 3 of the Care Standards Act 2000, and

(b)a place in Wales at which a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided wholly or mainly to persons aged 18 or over.]

[F9179Managing authority ”, in relation to a care home, means—

(a)in relation to England, the person registered, or required to be registered, under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the provision of residential accommodation, together with nursing or personal care, in the care home, and

(b)in relation to Wales, the person registered, or required to be registered, [F10under Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 in respect of the care home].]

Supervisory bodies: hospitalsE+W

180(1)The identity of the supervisory body is determined under this paragraph in cases where the relevant hospital is situated in England.E+W

[F11(2)If the relevant person is ordinarily resident in the area of a local authority in England, the supervisory body are that local authority.]

(3)If[F12the relevant person is not ordinarily resident in England and] the National Assembly for Wales or a Local Health Board commission the relevant care or treatment, the National Assembly are the supervisory body.

(4)In any other case, the supervisory body are [F13the local authority] for the area in which the relevant hospital is situated.

[F14(4A)Local authority” means—

(a)the council of a county;

(b)the council of a district for which there is no county council;

(c)the council of a London borough;

(d)the Common Council of the City of London;

(e)the Council of the Isles of Scilly.]

(5)If a hospital is situated in the areas of two (or more) [F15local authorities], it is to be regarded for the purposes of sub-paragraph (4) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.

Textual Amendments

F12Words in Sch. A1 para. 180(3) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 136(3)(b); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F13Words in Sch. A1 para. 180(4) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 136(3)(c); S.I. 2013/160, art. 2(2) (with arts. 7-9)

F15Words in Sch. A1 para. 180(5) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 136(3)(e); S.I. 2013/160, art. 2(2) (with arts. 7-9)

181(1)The identity of the supervisory body is determined under this paragraph in cases where the relevant hospital is situated in Wales.E+W

(2)The National Assembly for Wales are the supervisory body.

[F16(3)But if the relevant person is ordinarily resident in the area of a local authority in England, the supervisory body are that local authority.

(4)Local authority ” means—

(a)the council of a county;

(b)the council of a district for which there is no county council;

(c)the council of a London borough;

(d)the Common Council of the City of London;

(e)the Council of the Isles of Scilly.]

Textual Amendments

F16Sch. A1 para. 181(3)(4) substituted for Sch. A1 para. 181(3) (1.4.2013) by Health and Social Care Act 2012 (c. 7) , s. 306(4) , Sch. 5 para. 136(4) ; S.I. 2013/160 , art. 2(2) (with arts. 7-9 )

Supervisory bodies: care homesE+W

182(1)The identity of the supervisory body is determined under this paragraph in cases where the relevant care home is situated in England or in Wales.E+W

(2)The supervisory body are the local authority for the area in which the relevant person is ordinarily resident.

(3)But if the relevant person is not ordinarily resident in the area of a local authority, the supervisory body are the local authority for the area in which the care home is situated.

(4) In relation to England “ local authority ” means—

(a)the council of a county;

(b)the council of a district for which there is no county council;

(c)the council of a London borough;

(d)the Common Council of the City of London;

(e)the Council of the Isles of Scilly.

(5) In relation to Wales “ local authority ” means the council of a county or county borough.

(6)If a care home is situated in the areas of two (or more) local authorities, it is to be regarded for the purposes of sub-paragraph (3) as situated in whichever of the areas the greater (or greatest) part of the care home is situated.

[F17Supervisory bodies: determination of place of ordinary residence]E+W

Textual Amendments

183 F18( 1 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .E+W

F18( 2 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F19(2A)Section 39(1), (2) and (4) to (6) of the Care Act 2014 and paragraphs 1(1), 2(1) and 8 of Schedule 1 to that Act apply to any determination of where a person is ordinarily resident for the purposes of paragraphs 180, 181 and 182 as they apply for the purposes of Part 1 of that Act.]

[F20(2B)Section 194(1), (2), (4) and (5) of the Social Services and Well-being (Wales) Act 2014 apply to a determination of where a person is ordinarily resident for the purposes of paragraphs 180, 181 and 182 as it applies for the purposes of that Act.]

(3)Any question arising as to the ordinary residence of a person is to be determined by the Secretary of State or by the National Assembly for Wales.

(4)The Secretary of State and the National Assembly must make and publish arrangements for determining which cases are to be dealt with by the Secretary of State and which are to be dealt with by the National Assembly.

(5)Those arrangements may include provision for the Secretary of State and the National Assembly to agree, in relation to any question that has arisen, which of them is to deal with the case.

(6)Regulations may make provision about arrangements that are to have effect before, upon, or after the determination of any question as to the ordinary residence of a person.

(7)The regulations may, in particular, authorise or require a local authority to do any or all of the following things—

(a)to act as supervisory body even though it may wish to dispute that it is the supervisory body;

(b)to become the supervisory body in place of another local authority;

(c)to recover from another local authority expenditure incurred in exercising functions as the supervisory body.

Same body managing authority and supervisory bodyE+W

184(1)This paragraph applies if, in connection with a particular person's detention as a resident in a hospital or care home, the same body are both—E+W

(a)the managing authority of the relevant hospital or care home, and

(b)the supervisory body.

(2)The fact that a single body are acting in both capacities does not prevent the body from carrying out functions under this Schedule in each capacity.

(3)But, in such a case, this Schedule has effect subject to any modifications contained in regulations that may be made for this purpose.

Interested personsE+W

185Each of the following is an interested person—

(a)the relevant person's spouse or civil partner;

[F21(b)where the relevant person and another person are not married to each other, nor in a civil partnership with each other, but are living together as if they were a married couple: that other person;]

(d)the relevant person's children and step-children;

(e)the relevant person's parents and step-parents;

(f)the relevant person's brothers and sisters, half-brothers and half-sisters, and stepbrothers and stepsisters;

(g)the relevant person's grandparents;

(h)a deputy appointed for the relevant person by the court;

(i)a donee of a lasting power of attorney granted by the relevant person.

Textual Amendments

186(1)An interested person consulted by the best interests assessor is any person whose name is stated in the relevant best interests assessment in accordance with paragraph 40 (interested persons whom the assessor consulted in carrying out the assessment).E+W

(2)The relevant best interests assessment is the most recent best interests assessment carried out in connection with the standard authorisation in question (whether the assessment was carried out under Part 4 or Part 8).

187Where this Schedule imposes on a person a duty towards an interested person, the duty does not apply if the person on whom the duty is imposed—

(a)is not aware of the interested person's identity or of a way of contacting him, and

(b)cannot reasonably ascertain it.

188The following table contains an index of provisions defining or otherwise explaining expressions used in this Schedule—

age assessmentparagraph 34
age requirementparagraph 13
age review assessmentparagraph 112(3)
appointment regulationsparagraph 138
assessment under this Scheduleparagraph 127
assessor (except in Part 9)paragraph 33
assessor (in Part 9)paragraphs 33 and 128
authorisation under this Scheduleparagraph 10
best interests (determination of)section 4
best interests assessmentparagraph 38
best interests requirementparagraph 16
best interests review assessmentparagraph 112(6)
care homeparagraph 178
change of reason groundparagraph 106
complete (in relation to a review of a standard authorisation)paragraph 118
deprivation of a person's libertysection 64(5) and (6)
deputysection 16(2)(b)
detained residentparagraph 6
disposed of (in relation to a request for a standard authorisation)paragraph 66
eligibility assessmentparagraph 46
eligibility requirementparagraph 17
eligibility review assessmentparagraph 112(7)
eligible person (in relation to paragraphs 68 to 73)paragraph 68
eligible person (in relation to Part 8)paragraph 102(3)
expiry (in relation to an existing authorisation)paragraph 125(b)
existing authorisation (in Part 8)paragraph 125(a)
hospitalparagraph 175
IMCAparagraph 158
in force (in relation to a standard authorisation)paragraphs 63 and 64
in force (in relation to an urgent authorisation)paragraphs 88 and 89
ineligible (in relation to the eligibility requirement)Schedule 1A
interested personparagraph 185
interested person consulted by the best interests assessorparagraph 186
lack of capacitysection 2
lasting power of attorneysection 9
managing authority (in relation to a care home)paragraph 179
managing authority (in relation to a hospital)paragraph 176 or 177
maximum authorisation periodparagraph 42
mental capacity assessmentparagraph 37
mental capacity requirementparagraph 15
mental capacity review assessmentparagraph 112(5)
mental health assessmentparagraph 35
mental health requirementparagraph 14
mental health review assessmentparagraph 112(4)
negative conclusionparagraph 112(2)(a)
new supervisory bodyparagraph 99(b)
no refusals assessmentparagraph 48
no refusals requirementparagraph 18
no refusals review assessmentparagraph 112(8)
non-qualification groundparagraph 105
old supervisory bodyparagraph 99(a)
positive conclusionparagraph 112(2)(b)
purpose of a standard authorisationparagraph 11(1)
purpose of an urgent authorisationparagraph 11(2)
qualifying requirementsparagraph 12
refusal (for the purposes of the no refusals requirement)paragraphs 19 and 20
relevant care or treatmentparagraph 7
relevant hospital or care homeparagraph 7
relevant managing authorityparagraph 26(4)
relevant personparagraph 7
relevant person's representativeparagraph 137
relevant procedureparagraph 128
review assessmentparagraph 112(1)
reviewableparagraph 104
section 39A IMCAparagraph 155
section 39C IMCAparagraph 156
section 39D IMCAparagraph 157
standard authorisationparagraph 8
supervisory body (except in Part 9)paragraph 180, 181 or 182
supervisory body (in Part 9)paragraph 128 and paragraph 180, 181 or 182
unauthorised deprivation of liberty (in relation to paragraphs 68 to 73)paragraph 67
urgent authorisationparagraph 9
variation of conditions groundparagraph 107]

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