PART 2LACK OF CAPACITY: PROTECTION FROM LIABILITY, AND SAFEGUARDS

CHAPTER 8SUPPLEMENTARY

Other supplementary provision

I159Failure by person other than D to take certain steps

1

This section applies if, in relation to an act done by a person (“D”)—

a

all the conditions for section 9 to apply are met, except that supportive steps that it would have been practicable to take were not taken;

b

the fact that those steps were not taken is not to any extent due to an unreasonable failure by D to take such steps; and

c

at the time of the act, it is no longer practicable for such steps to be taken.

2

For the purposes of determining whether D is liable in relation to the act, section 9 is to be taken to apply to the act.

3

But if—

a

D is an employee of a person (“E”), and

b

any other employee of E unreasonably failed to take supportive steps in relation to the matter at a time when it would have been practicable to take such steps,

for the purposes of determining whether E is liable in relation to the act subsection (2) is to be disregarded.

4

In this section “supportive steps” means steps to help or support the person to whom the act relates (“P”) to enable P to make a decision for himself or herself about the matter.

5

For the purposes of this section a failure by a person at any time to take a supportive step that it would be practicable to take is unreasonable unless—

a

at the time in question the person reasonably believes that the step can be taken at a later time and still be as effective as it would be if taken immediately; and

b

not taking the step immediately is reasonable in the circumstances.

6

Any person for whose acts another person may be vicariously liable is to be treated for the purposes of this section as an employee of that other person.

60Part 2 not applicable where other authority for act

I21

Section 9 does not apply in relation to an act—

a

which gives effect to a relevant decision; or

b

which a person has a power (or duty) to do under any other statutory provision (including any provision of this Act).

2

In this section a “relevant decision” means a decision concerning the care, treatment or personal welfare of a person (“P”) which—

a

is made by the court on P's behalf under section 113(2)(a);

b

is made in accordance with this Act by an attorney under a lasting power of attorney granted by P and is within the scope of the attorney's authority;

c

is made in accordance with this Act by a deputy appointed for P by the court and is within the scope of the deputy's authority; or

I2d

where P is under 18, is a decision made by a parent or guardian of P which is effective under any rule of law.

I361Power to make further provision

1

The Department may by regulations make provision modifying any provision of this Part in relation to cases where—

a

an act is proposed to be done in respect of a person after that person has reached the age of 16, but

b

at the time the act is proposed, the person is under 16.

2

The Department may by regulations make provision enabling prescribed relevant documents that are found to be incorrect or defective within a prescribed period from being made—

a

to be rectified within a prescribed period, and

b

to have effect as if originally made as rectified.

3

In subsection (2) “relevant document” means an authorisation, or other document, made for the purposes of this Part.