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.