Search Legislation

Mental Capacity Act (Northern Ireland) 2016

Status:

This is the original version (as it was originally enacted).

Practice and procedure

Applications to the court

122.—(1) No leave is required for an application to the court for the exercise of any of its powers under this Part—

(a)by a person who lacks, or is alleged to lack, capacity;

(b)if such a person is under 18, by anyone with parental responsibility for that person;

(c)where the application relates to a lasting power of attorney or enduring power of attorney and the application is made by the donor or any person who is an attorney under the power;

(d)by a deputy appointed by the court for a person to whom the application relates;

(e)by a person named in an existing order of the court, if the application relates to the order; or

(f)where the application is made by virtue of section 129 (proceedings following inquiry by Public Guardian).

(2) But, subject to rules of court and to paragraph 21(2) of Schedule 9 (declarations relating to private international law), leave is required for any other application to the court for the exercise of any of its powers under this Act.

(3) In deciding whether to grant leave the court must (in particular) have regard to—

(a)the applicant’s connection with the person to whom the application relates;

(b)the reasons for the application;

(c)the benefit to the person to whom the application relates of a proposed order or directions; and

(d)whether the benefit can be achieved in any other way.

Duty to notify Attorney General

123.—(1) A person who makes an application to the court under this Part must notify the Attorney General of that fact.

(2) The notification must be made in accordance with rules of court.

(3) The Attorney General may intervene in the proceedings on the application in such way as the Attorney General considers appropriate.

Rules of court

124.—(1) In this section “proceedings” means proceedings before the court with respect to a person who lacks, or is alleged to lack, capacity (“P”).

(2) Rules of court may make provision as to the conduct of such proceedings including provision—

(a)as to the carrying out of preliminary or incidental inquiries;

(b)as to the way and form in which proceedings are to be commenced and carried on;

(c)as to the persons by whom proceedings may be commenced and carried on;

(d)as to the persons who are to be entitled to be notified of, to attend, or to take part in proceedings;

(e)as to the evidence which may be authorised or required to be given in proceedings and the way (whether on oath or otherwise and whether orally or in writing) in which it is to be given;

(f)as to the administration of oaths and taking of affidavits for the purposes of proceedings;

(g)for the allocation, in specified circumstances, of any specified description of proceedings to a specified judge or to specified descriptions of judges;

(h)for the exercise of the jurisdiction of the court, in specified circumstances, by its officers or other staff;

(i)for enabling the court to appoint a suitable person (who may, with his or her consent, be the Official Solicitor) to act in the name of, or on behalf of, or to represent P;

(j)for enabling an application to the court to be disposed of without a hearing;

(k)as to authorising or requiring—

(i)the attendance and examination of persons who lack, or are alleged to lack capacity;

(ii)the provision of information; and

(iii)the production of documents;

(l)for enabling the court to proceed with, or with any part of, a hearing in the absence of P;

(m)for enabling or requiring the proceedings or any part of them to be conducted in private and for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public;

(n)as to what may be received as evidence (whether or not admissible apart from the rules) and the way in which it is to be presented;

(o)for the enforcement of orders made and directions given in the proceedings;

(p)as to—

(i)the making of orders for the payment of costs to or by persons attending, as well as persons taking part in, proceedings; and

(ii)the way in which and funds out of which any such costs are to be paid;

(q)the way in which, and funds from which, fees are to be paid;

(r)as to the termination of proceedings, whether on the death or recovery of P or otherwise, and the exercise, pending the termination of the proceedings, of powers exercisable under this Part in relation to P’s—

(i)care, treatment or personal welfare; or

(ii)property or affairs;

(s)for charging fees and costs upon P’s estate;

(t)for the payment of fees and costs within a specified time of P’s death or the conclusion of the proceedings.

(3) Rules of court may also make provision as to appeals from decisions of the court in such proceedings, including provision—

(a)that where a decision of the court is made by a person exercising the jurisdiction of the court by virtue of rules made under subsection (2)(h), an appeal from that decision lies to a judge of the court of a specified description and not to the Court of Appeal;

(b)that, in specified cases, an appeal from a decision of the court may not be made without leave;

(c)as to the person or persons entitled to grant leave to appeal;

(d)as to any requirements to be met before leave is granted;

(e)that where a judge of the court makes a decision on an appeal, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—

(i)the appeal would raise an important point of principle or practice; or

(ii)there is some other compelling reason for the Court of Appeal to hear it;

(f)as to any considerations to be taken into account in relation to granting or refusing leave to appeal.

(4) A charge, created by virtue of subsection (2)(s), upon the estate of a person is not to cause any interest of that person in any property to fail or determine or to be prevented from recommencing.

(5) In this section “specified” means specified by the rules.

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open The Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act without Schedules as a PDF

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open the Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open Schedules only

The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made):The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Show Explanatory Notes for Sections: Displays relevant parts of the explanatory notes interweaved within the legislation content.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

Explanatory Notes

Text created by the Northern Ireland Assembly department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes accompany all Acts of the Northern Ireland Assembly.

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources