Mental Capacity Act (Northern Ireland) 2016

SCHEDULES

Sections 19, 22, 25, 28 and 30.

SCHEDULE 1 Authorisation by panel of certain serious interventions

Part 1 Preliminary

1.—(1) In this Schedule—

“appropriate care or treatment”, in relation to a person, means care or treatment which is (or care and treatment which are) appropriate in that person’s case;

“community residence requirement”: see section 31;

“the criteria for authorisation”, in relation to a measure mentioned in paragraph 2(2), has the meaning given in relation to that measure by Part 3 of this Schedule;

“proposed”, in relation to a measure, includes proposed to be carried out if particular circumstances arise;

“the relevant trust” has the meaning given by paragraph 2(4).

(2) For the purposes of this Schedule a medical report is made when the completed report is signed by the person making it.

Part 2 Applications for authorisation

Applications for authorisation

2.—(1) An application under this Schedule may be made where one or more measures mentioned in sub-paragraph (2) are proposed in relation to a person who is 16 or over (“P”).

(2) Those measures are—

(a) the provision to P of particular treatment which is relevant treatment (as defined by paragraph 4);

(b) the detention of P in circumstances amounting to a deprivation of liberty in a particular place in which appropriate care or treatment is available for P;

(c) the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given particular treatment that would or might be treatment with serious consequences (“an attendance requirement”);

(d) the imposition on P of a community residence requirement.

(3) An application under this Schedule is an application to the relevant trust for authorisation of one or more measures mentioned in sub-paragraph (2) which are proposed.

(4) In this Schedule “the relevant trust” means—

(a) if the application requests authorisation of the detention of P in a particular place in circumstances amounting to a deprivation of liberty, the HSC trust in whose area the place is situated;

(b) if the application requests authorisation of the provision of particular treatment or authorisation of an attendance requirement, and head (a) does not apply, the HSC trust in whose area the treatment would be provided;

(c) if the application requests authorisation of a community residence requirement and head (b) does not apply, the HSC trust in whose area the place where P would be required by the community residence requirement to live is situated.

Applications: supplementary

3.—(1) An application may not be made for authorisation of the detention of P in a hospital where the proposed detention could be authorised under Schedule 2 (short-term detention for examination etc).

(2) But sub-paragraph (1) does not apply if the application also requests authorisation of another measure or measures mentioned in paragraph 2(2).

(3) An application may be made in respect of a person who is under 16 but who will be 16 or over when the proposed measure would be carried out.

(4) An application may be made in respect of a measure or measures mentioned in paragraph 2(2) where the measure, or any of the measures, has already begun (for example, because it was begun in an emergency) and is proposed to be continued.

(5) For the purposes of paragraph 2(2)(b) it does not matter whether P is or is not already resident in the place (or, if the place is a hospital, an in-patient in the hospital) at the time when the detention is proposed.

(6) Regulations may provide that an application for authorisation of the detention of P in circumstances amounting to a deprivation of liberty in a particular place—

(a) may be made only if the place is of a prescribed description; or

(b) may not be made if the place is of a prescribed description.

(7) In this paragraph “application” means an application under this Schedule.

Paragraph 2: meaning of “relevant treatment”

4.  For the purposes of paragraph 2 treatment which is proposed to be provided to P is “relevant treatment” if—

(a) it would or might be treatment with serious consequences (see section 21);

(b) the applicant reasonably believes that P lacks capacity in relation to the treatment; and

(c) either of the following applies—

(i) P’s nominated person has reasonably objected to the proposal to provide the treatment and has not withdrawn that objection; or

(ii) the applicant reasonably believes that it is likely that the provision of the treatment would be such that authorisation is needed by reason of section 20 (resistance etc by P to provision of certain treatment).

Who may make application

5.—(1) Any application under this Schedule must be made by a person who—

(a) is of a prescribed description; and

(b) is unconnected with P (see section 304).

(2) Regulations under sub-paragraph (1)(a) may in particular prescribe, as a description of persons who may make an application under this Schedule—

(a) an approved social worker;

(b) a person of a prescribed description who is designated by the managing authority of a hospital or care home in which P is an in-patient or resident as a person who may make applications under this Schedule;

(c) a person of a prescribed description who is designated by an appropriate person (as defined by the regulations) as a person who may make applications under this Schedule.

Contents of application

6.—(1) An application under this Schedule must—

(a) be in the prescribed form;

(b) include a medical report (see paragraph 7);

(c) include a care plan (see paragraph 8);

(d) include prescribed information about the views, on prescribed matters, of P’s nominated person and any prescribed person; and

(e) include any other prescribed information.

(2) If—

(a) the application requests authorisation of a measure within paragraph 2(2)(b) or (d) (deprivation of liberty or community residence requirement), and

(b) in the opinion of the person making the application, if the measure were authorised under paragraph 15, P would lack (or would probably lack) capacity in relation to whether an application under section 45 in respect of the authorisation should be made,

the application must contain a statement of that opinion.

Medical report

7.—(1) The medical report must be in the prescribed form and must—

(a) be made by a medical practitioner who is unconnected with P and is permitted by regulations under section 300 to make the report;

(b) include the required statement; and

(c) include any prescribed information.

(2) The “required statement” is a statement by the person making the medical report that—

(a) in that person’s opinion, the criteria for authorisation are met in relation to the measure for which the application requests authorisation; or

(b) if the application requests authorisation for more than one measure, in that person’s opinion the criteria for authorisation are met in relation to each such measure.

(3) The criteria for authorisation are set out in Part 3 of this Schedule.

(4) The maker of the medical report must have examined P not more than two days before the date when the report is made.

(5) See also sections 54 and 55 (involvement of nominated person and independent mental capacity advocate).

Care plan

8.  The care plan must be in the prescribed form and must include—

(a) prescribed information about the measure or measures for which the application requests authorisation;

(b) such other information relating to what is proposed as may be prescribed.

Part 3 The criteria for authorisation

Criteria for treatment

9.—(1) In relation to the provision to P of particular treatment, the criteria for authorisation are—

(a) that P lacks capacity in relation to the treatment;

(b) that it would be in P’s best interests to have the treatment; and

(c) if P’s nominated person has reasonably objected to the proposal to provide the treatment and has not withdrawn that objection, that the prevention of serious harm condition is met.

(2) The prevention of serious harm condition is—

(a) that failure to provide the treatment to P would create a risk of serious harm to P or of serious physical harm to other persons; and

(b) that carrying out the treatment would be a proportionate response to—

(i) the likelihood of harm to P, or of physical harm to other persons; and

(ii) the seriousness of the harm concerned.

(3) Subsections (2) and (3) of section 22 (situations where there is a choice of treatments) apply for the purposes of sub-paragraph (2).

Criteria for detention amounting to deprivation of liberty

10.  In relation to detention of P in a place in circumstances amounting to a deprivation of liberty, the criteria for authorisation are that—

(a) appropriate care or treatment is available for P in the place in question;

(b) failure to detain P in circumstances amounting to a deprivation of liberty in a place in which appropriate care or treatment is available for P would create a risk of serious harm to P or of serious physical harm to other persons;

(c) detaining P in the place in question in circumstances amounting to a deprivation of liberty would be a proportionate response to—

(i) the likelihood of harm to P, or of physical harm to other persons; and

(ii) the seriousness of the harm concerned;

(d) P lacks capacity in relation to whether he or she should be detained in the place in question; and

(e) it would be in P’s best interests to be so detained.

Criteria for requirement to attend for treatment

11.  In relation to the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given particular treatment that would or might be treatment with serious consequences, the criteria for authorisation are that—

(a) failure to impose such a requirement would be more likely than not to result in P’s not receiving the treatment;

(b) P lacks capacity in relation to whether he or she should attend for the purpose of being given the treatment at the place and times or intervals concerned; and

(c) a requirement to attend for that purpose at the place and times or intervals concerned would be in P’s best interests.

Criteria for community residence requirement

12.  In relation to the imposition on P of a community residence requirement, the criteria for authorisation are that—

(a) failure to impose a community residence requirement would create a risk of harm to P;

(b) imposing such a requirement would be a proportionate response to—

(i) the likelihood of harm to P; and

(ii) the seriousness of the harm concerned;

(c) P lacks capacity in relation to the matters covered by the community residence requirement;

(d) any services which, under regulations under section 33, are required to be available to people subject to community residence requirements are available in the area in which P would be required by the community residence requirement to live; and

(e) the community residence requirement would be in P’s best interests.

Measures proposed to be carried out only if particular circumstances arise

13.  In applying the criteria in this Part of this Schedule in a case where a measure is proposed to be carried out only if particular circumstances arise, any question—

(a) whether the measure would be in P’s best interests,

(b) whether failure to carry out the measure would create a particular risk, or

(c) whether carrying out the measure would be a proportionate response,

is to be decided on the basis of what the situation would be if those circumstances arose.

Part 4 Decision on application

Panel to consider application

14.—(1) Where the relevant trust receives an application duly made under this Schedule, it must as soon as practicable—

(a) give prescribed information to P and any prescribed person; and

(b) constitute a panel to consider the application.

(2) See also section 297 (general provision about panels).

Decision on application

15.—(1) Having considered the application, the panel must—

(a) authorise the measure mentioned in paragraph 2(2)(a) to (d) for which the application requests authorisation (or, if the application requests authorisation of more than one such measure, authorise each of those measures or such one or more of them as may be specified in the authorisation); or

(b) refuse to grant an authorisation under this paragraph.

(2) If a measure authorised under sub-paragraph (1)(a) is the provision to P of particular treatment, the authorisation may also include authorisation of a measure mentioned in paragraph 2(2)(b) to (d) authorisation of which was not requested by the application.

(3) Sub-paragraph (2) applies whether or not the application requested authorisation of any other measure mentioned in paragraph 2(2)(b) to (d).

(4) Paragraphs 16 to 18 contain provision supplementing this paragraph.

(5) The panel may authorise a measure under this paragraph only if it considers that the criteria for authorisation are met in relation to that measure.

(6) An authorisation granted under this paragraph—

(a) takes effect from the time when the authorisation is granted; and

(b) expires (unless previously revoked) at the end of the period of 6 months beginning with the date when the authorisation is granted;

but this is subject to Chapter 6 of Part 2 of this Act (extension of period of authorisation).

(7) An authorisation under this paragraph may be expressed so as to authorise a measure to be carried out if circumstances specified in the authorisation arise.

Specifying detention amounting to deprivation of liberty

16.—(1) This paragraph applies where an authorisation under paragraph 15 authorises P’s detention in a place in circumstances amounting to a deprivation of liberty.

(2) The authorisation must specify—

(a) the purposes for which P may be detained in circumstances amounting to a deprivation of liberty; and

(b) the place in which P may be so detained.

(3) The authorisation may authorise P to be detained for a specified purpose in one place and for other specified purposes in another place.

(4) Any purpose specified under this paragraph must relate to the risk mentioned in paragraph 10(b) (for example, if that risk is of serious harm to P from a disorder, a purpose specified may be the purpose of ensuring that P receives treatment for the disorder).

Specifying requirement to attend for treatment

17.  Where an authorisation under paragraph 15 authorises the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given specified treatment, the authorisation—

(a) may either specify the place or authorise it to be such place as the medical practitioner in charge of the treatment may direct;

(b) may either specify the times or intervals or authorise them to be such times or intervals as that medical practitioner may direct.

Specifying community residence requirement

18.—(1) This paragraph applies where an authorisation under paragraph 15 authorises the imposition on P of a community residence requirement.

(2) A community residence requirement which is in accordance with the authorisation may (subject to the provisions of this Act) be imposed on P by the HSC trust to which the application under this Schedule was made (“the trust”).

(3) The authorisation must specify, in accordance with the following provisions of this paragraph, the terms of the community residence requirement that may be imposed by the trust under the authorisation.

(4) The authorisation must provide either—

(a) that the trust may require P to live at a place specified by the authorisation; or

(b) that the trust may require P to live at such place as may be specified by the trust.

(5) The authorisation may include either or both of the following provisions—

(a) provision that if the trust imposes the requirement authorised under sub-paragraph (4), the trust may also require P to allow a healthcare professional specified by the trust access to P, at reasonable times required by that professional, at a place where P is living;

(b) provision that if the trust imposes the requirement authorised under sub-paragraph (4), the trust may also require P to attend at particular places and times or intervals for the purpose of training, education, occupation or treatment.

(6) Where by virtue of sub-paragraph (5)(b) the authorisation includes provision authorising a requirement for P to attend at a particular place at particular times or intervals, the authorisation—

(a) may either specify the place or authorise it to be such place as the trust may specify; and

(b) may either specify the times or intervals or authorise them to be such times or intervals as the trust may specify.

(7) In this paragraph—

“healthcare professional” means a person of a description prescribed under section 31(3);

“treatment” is to be read in accordance with section 31(4).

Time limit for panel’s decision, and duty to notify decision

19.—(1) The panel must comply with paragraph 15(1) as soon as practicable and in any case no later than the end of the permitted period.

(2) The “permitted period” is (subject to paragraph 20) the period of 7 working days beginning with the day on which the application is received by the trust (or, if that day is not a working day, beginning with the first working day after that).

(3) As soon as practicable after granting or refusing an authorisation under paragraph 15, the panel must give to P and any prescribed person—

(a) written notice of the grant or refusal; and

(b) any prescribed information.

(4) Regulations under sub-paragraph (3) must ensure that the Attorney General is given notice in any case where—

(a) the panel grants an authorisation that authorises a measure within paragraph 2(2)(b) or (d) (deprivation of liberty or community residence requirement); and

(b) the application under this Schedule contained the statement mentioned in paragraph 6(2) (statement that P lacks, or probably lacks, capacity in relation to making of Tribunal application).

Interim authorisations

20.—(1) If at any time before the end of the period mentioned in paragraph 19(2) the panel considers—

(a) that it will not be possible within that period to decide whether the criteria for authorisation are met in respect of a measure proposed in the application, but

(b) that there is a good prospect of it being established that the criteria for authorisation are met in respect of the measure,

the panel may grant an interim authorisation.

(2) The power of the panel to grant an interim authorisation is power to grant an authorisation which—

(a) does as mentioned in paragraph 15(1)(a); but

(b) is expressed to have effect only until the end of the period of 28 days beginning with the date on which the interim authorisation is granted.

(3) Accordingly, an interim authorisation—

(a) takes effect from the time when the authorisation is granted; and

(b) expires (unless previously revoked) at the end of the period of 28 days beginning with the date on which it is granted.

(4) Paragraphs 15(2), (3) and (7) and 16 to 18 apply in relation to an interim authorisation as they apply in relation to an authorisation under paragraph 15.

(5) Where the panel grants an interim authorisation in relation to an application under this Schedule—

(a) the period within which the panel must grant or refuse an authorisation under paragraph 15 in respect of the application is 28 days beginning with the date on which the interim authorisation is granted; and

(b) the grant or refusal of an authorisation under paragraph 15 in respect of the application revokes the interim authorisation.

(6) As soon as practicable after granting an interim authorisation, the panel must give written notice of the grant, and any prescribed information, to P and any prescribed person.

(7) Regulations under sub-paragraph (6) must ensure that the Attorney General is given notice in any case where—

(a) the panel grants an interim authorisation that authorises a measure within paragraph 2(2)(b) or (d) (deprivation of liberty or community residence requirement); and

(b) the application under this Schedule contained the statement mentioned in paragraph 6(2) (statement that P lacks, or probably lacks, capacity in relation to making of Tribunal application).

Part 5 Matters covered by authorisation etc

Treatment: what is covered by authorisation

21.—(1) Sub-paragraph (2) applies where an authorisation under this Schedule authorises the provision to P of treatment specified by the authorisation.

(2) As well as authorising the provision of that treatment to P, the authorisation authorises the provision to P of—

(a) any part of the treatment concerned;

(b) the treatment concerned, or any part of it, with such modifications as the medical practitioner in charge of P’s treatment may reasonably consider to be in P’s best interests.

(3) Sub-paragraph (4) applies where an authorisation under this Schedule authorises the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment specified by the authorisation.

(4) As well as authorising the imposition of such a requirement, the authorisation authorises the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment mentioned in sub-paragraph (2)(a) or (b).

(5) Any reference in this Part of this Act to treatment “specified by” an authorisation is to be read as including treatment mentioned in sub-paragraph (2)(a) or (b).

Detention: what is covered by authorisation

22.—(1) This paragraph applies where an authorisation under this Schedule authorises the detention of P in a specified place for specified purposes.

(2) As well as authorising that detention, the authorisation authorises any related detention that may occur while the authorisation is in force.

(3) In sub-paragraph (2) “related detention” means—

(a) any detention of P in the specified place at a time when the detention is partly for the purposes specified in the authorisation and partly for other purposes relating to P’s care or treatment;

(b) any detention of P while P is being taken to the specified place; and

(c) any detention of P while P is absent from the specified place, if—

(i) the detention is in pursuance of a condition imposed on P that relates to permission given to P to be absent from the specified place for a particular period or a particular occasion;

(ii) the imposition of the condition is an act to which section 9(2) applies; and

(iii) the detention is for no longer than 7 days.

(4) In this paragraph “detention” means detention in circumstances amounting to a deprivation of liberty.

(5) Nothing in the authorisation or this paragraph affects the operation of this Part of this Act in relation to any detention of P in circumstances not amounting to a deprivation of liberty.

Effect of discharge from detention

23.—(1) Where—

(a) an authorisation under this Schedule authorises the detention of P in circumstances amounting to a deprivation of liberty, and

(b) P is discharged from detention,

the authorisation ceases to authorise any detention of P.

(2) For the purposes of this paragraph P is “discharged from detention” if a person with authority to discharge P from detention informs P in writing that he or she is discharged from detention.

Power to vary or revoke requirements etc imposed under authorisation

24.  Any power conferred by virtue of an authorisation under this Schedule to impose a requirement or give a direction includes power to vary or revoke the requirement or direction (but not in such a way as to result in a requirement that is not permitted by the authorisation).

Effect of authorisation on previous authorisations

25.—(1) The grant of an interim authorisation under this Schedule revokes any authorisation under Schedule 2 in respect of P which is in force immediately before the grant of the interim authorisation; but this is subject to sub-paragraph (2).

(2) The panel which grants the interim authorisation may, when it makes the grant, also decide that the authorisation under Schedule 2 is not revoked by the grant.

26.—(1) The grant of an authorisation under paragraph 15 (“the later authorisation”), as well as revoking any interim authorisation relating to the same application, revokes any relevant earlier authorisation; but this is subject to sub-paragraph (3).

(2) In this paragraph a “relevant earlier authorisation” means—

(a) any authorisation under Schedule 2 in respect of P, or

(b) any authorisation under paragraph 15 in respect of P,

which is in force immediately before the grant of the later authorisation.

(3) The panel which grants the later authorisation may, when it makes the grant, also decide that—

(a) a relevant earlier authorisation specified by the panel, or

(b) a specified provision of such an authorisation,

is not revoked by the grant.

Relationship with other conditions

27.  For the avoidance of doubt, the fact that a particular measure is authorised by an authorisation under this Schedule does not affect the need for the other conditions of this Part of this Act that apply to be met in respect of any act that is, or is part of, that measure.

Section 25.

SCHEDULE 2 Authorisation of short-term detention in hospital for examination etc

Part 1 Preliminary

1.—(1) In this Schedule—

“the criteria for authorisation” has the meaning given by paragraph 2(3);

“the responsible medical practitioner”, in relation to a person who is an in-patient in a hospital, means the medical practitioner who is in charge of the person’s care in the hospital (see also sub-paragraphs (2) and (3)).

(2) Regulations may provide that the medical practitioner in charge of a person’s care in a hospital may carry out prescribed functions of the responsible medical practitioner under this Schedule only if prescribed conditions are met.

(3) A condition that may be prescribed under sub-paragraph (2) is that the practitioner is approved by RQIA for prescribed purposes.

(4) For the purposes of this Schedule a report is made when the completed report is signed by the person making it.

(5) Where a report under paragraph 2 is made in respect of a person who is already an in-patient in the hospital specified in the report, the person is to be treated for the purposes of this Schedule as if admitted to the hospital at the time the report was made.

Part 2 The authorisation

Authorisation of detention in hospital for examination etc

2.—(1) The detention of a person in a hospital in circumstances amounting to a deprivation of liberty, for the purposes of examination (or of examination followed by other treatment or care), may be authorised by the making of a report under this paragraph.

(2) An appropriate healthcare professional (as defined by paragraph 3) may make a report under this paragraph in respect of a person who is 16 or over (“P”) if, in the opinion of the appropriate healthcare professional, the criteria for authorisation are met.

(3) The criteria for authorisation are that—

(a) P has an illness or there is reason to suspect that P has an illness;

(b) failure to detain P in a hospital in circumstances amounting to a deprivation of liberty, for the purposes of examination or of examination followed by other treatment or care, would create a risk of serious harm to P or of serious physical harm to other persons;

(c) detaining P in the hospital in circumstances amounting to a deprivation of liberty, for those purposes, would be a proportionate response to—

(i) the likelihood of harm to P, or of physical harm to other persons; and

(ii) the seriousness of the harm concerned;

(d) P lacks capacity in relation to whether he or she should be so detained; and

(e) it would be in P’s best interests for him or her to be so detained.

(4) A report under this paragraph must be in the prescribed form and must—

(a) include a medical report (see paragraph 4);

(b) include a statement by the appropriate healthcare professional that in his or her opinion the criteria for authorisation are met;

(c) include prescribed information about the views, on prescribed matters, of P’s nominated person and any prescribed person;

(d) include any other prescribed information; and

(e) state that the report authorises the detention, in circumstances amounting to a deprivation of liberty, of P in a specified hospital for the purposes of examination or of examination followed by other treatment or care.

(5) If the appropriate healthcare professional is of the opinion that P lacks (or probably lacks) capacity in relation to whether an application under section 45 (applications to Tribunal) should be made in respect of the authorisation granted by the making of the report under this paragraph, the report must contain a statement of that opinion.

(6) In this paragraph “examination” includes further examination.

Who may make a report under paragraph 2

3.—(1) In paragraph 2 “an appropriate healthcare professional” means a person who—

(a) is of a prescribed description; and

(b) is unconnected with P (see section 304).

(2) The descriptions of person who may be prescribed under this paragraph include in particular—

(a) an approved social worker;

(b) a person of a prescribed description who is designated by the managing authority of the hospital specified in the report under paragraph 2 as a person who may make reports under that paragraph.

Medical report

4.—(1) The medical report included in a report under paragraph 2 must be in the prescribed form and must—

(a) be made by a medical practitioner who is unconnected with P and is permitted by regulations under section 300 to make the report;

(b) include a statement by the person making the medical report that in that person’s opinion the criteria for authorisation are met; and

(c) include any prescribed information.

(2) The maker of the medical report must have examined P not more than two days before the date when the medical report is made.

(3) See also sections 54 and 55 (involvement of nominated person and independent mental capacity advocate).

Consultation required before report authorising detention is made

5.  A person may make a report under paragraph 2 only if the person has personally seen P not more than two days before the date on which that report is made.

6.—(1) Where—

(a) it is proposed to make a report under paragraph 2, and

(b) P’s nominated person objects to the making of the report,

a person may make a report under paragraph 2 in respect of P only if the person has consulted an approved social worker.

(2) This applies even if the person making the report under paragraph 2 is an approved social worker.

Information to be given where report authorising detention is made

7.—(1) Where a report under paragraph 2 is made, the person who made the report must as soon as practicable give prescribed information to—

(a) the managing authority of the hospital specified in the report; and

(b) any prescribed person.

(2) Regulations under sub-paragraph (1) must ensure that where a report containing the statement mentioned in paragraph 2(5) is made, the Attorney General is notified of that fact.

Duration of authorisation: preliminary

8.—(1) An authorisation granted by the making of a report under paragraph 2—

(a) takes effect from the time the report is made; and

(b) expires (if not previously revoked) when an event which terminates the authorisation occurs (or, if more than one such event occurs, on the occurrence of the first of those events).

(2) “An event which terminates the authorisation” is to be read in accordance with Part 3 of this Schedule.

Part 3 Events terminating the authorisation

Expiry where failure to admit P within period required

9.—(1) If—

(a) at the time when a report under paragraph 2 is made P is not already an in-patient in the hospital specified in the report, and

(b) at the end of the period allowed for admission P has not been admitted to that hospital,

the expiry of that period is an event which terminates the authorisation.

(2) In this paragraph “the period allowed for admission” means—

(a) two days beginning with the date when the medical report under paragraph 4 was made; or

(b) such longer period, not exceeding 14 days beginning with that date, as a medical practitioner who meets prescribed conditions may (before the end of the period mentioned in head (a)) certify to be necessary because of exceptional circumstances.

(3) A certificate under sub-paragraph (2)(b) must be in the prescribed form and include prescribed information.

Expiry where failure to give P certain information

10.—(1) This paragraph applies if—

(a) pursuant to a report under paragraph 2, P is admitted to the hospital specified in the report; or

(b) P is treated under paragraph 1(5) as so admitted.

(2) If P is not given prescribed information by the managing authority of the hospital as soon as practicable after the admission or deemed admission, the failure to give P that information is an event which terminates the authorisation.

Expiry where failure to examine and report on P on admission

11.—(1) This paragraph applies where—

(a) pursuant to a report under paragraph 2, P is admitted to the hospital specified in the report; or

(b) P is treated under paragraph 1(5) as so admitted.

(2) Immediately after being admitted or treated as admitted, P must be examined by a medical practitioner who—

(a) is within sub-paragraph (3); and

(b) did not make the medical report under paragraph 4.

(3) The medical practitioners are—

(a) the responsible medical practitioner;

(b) another medical practitioner who meets prescribed conditions; or

(c) any other medical practitioner who is on the staff of the hospital.

(4) A medical practitioner carrying out an examination under this paragraph must immediately make a report in the prescribed form of the examination.

(5) The report must include a statement by the person making the report as to whether, in that person’s opinion, the condition in paragraph 12 is met.

(6) If the report states that in the opinion of the person making the report that condition is not met, the making of the report is an event which terminates the authorisation.

(7) A person who makes a report under this paragraph must immediately give the report to the managing authority of the hospital.

(8) If there is a failure to examine P in accordance with sub-paragraph (2), or to make a report in accordance with sub-paragraphs (4) and (5), the failure is an event which terminates the authorisation.

The condition for detention

12.—(1) This paragraph applies for the purposes of paragraphs 11, 13 and 14.

(2) The condition referred to in those paragraphs is that—

(a) failure to detain P in the hospital in circumstances amounting to a deprivation of liberty, for the purposes of further care, would create a risk of serious harm to P or of serious physical harm to other persons;

(b) detaining P in the hospital in circumstances amounting to a deprivation of liberty, for those purposes, is a proportionate response to—

(i) the likelihood of harm to P, or of physical harm to other persons; and

(ii) the seriousness of the harm concerned;

(c) P lacks capacity in relation to whether he or she should be so detained; and

(d) it would be in P’s best interests for him or her to be so detained.

(3) In sub-paragraph (2) “further care” means such one or more of the following as are appropriate in P’s case—

(a) further examination;

(b) the provision to P of other treatment or care.

Expiry where no examination and report by suitable medical practitioner within required time

13.—(1) This paragraph applies where—

(a) a report under paragraph 11 (an “admission report”) has been made;

(b) the admission report was not such as to terminate the authorisation; and

(c) the admission report was made by a practitioner within paragraph 11(3)(c) (and not within paragraph 11(3)(a) or (b)).

(2) If, at the end of 48 hours from the time when the admission report was made, a suitable medical practitioner has not examined P and made a report in accordance with sub-paragraphs (4) and (5), the expiry of that period is an event which terminates the authorisation.

(3) In this paragraph “a suitable medical practitioner” means—

(a) the responsible medical practitioner; or

(b) if it is not practicable for that practitioner to carry out the examination under this paragraph, another medical practitioner who meets prescribed conditions.

(4) A medical practitioner carrying out an examination under this paragraph must immediately make a report in the prescribed form of the examination.

(5) The report must include a statement by the person making the report as to whether, in that person’s opinion, the condition in paragraph 12 is met.

(6) If the report states that in the opinion of the person making the report that condition is not met, the making of the report is an event which terminates the authorisation.

(7) A person who makes a report under this paragraph must immediately give the report to the managing authority of the hospital.

Expiry where no further examination and report on P within 14 days

14.—(1) This paragraph applies where—

(a) either of the following has been made—

(i) a report under paragraph 11 by a practitioner within paragraph 11(3)(a) or (b); or

(ii) a report under paragraph 13; and

(b) the report was not such as to terminate the authorisation.

(2) If at the end of 14 days beginning with the date of admission a suitable medical practitioner has not examined P and made a further report in accordance with sub-paragraphs (5) and (6), the expiry of that period is an event which terminates the authorisation.

(3) In this paragraph “the date of admission” means the date when the report under paragraph 11 was made (whether or not that report was made as mentioned in sub-paragraph (1)(a)(i)).

(4) In this paragraph “a suitable medical practitioner” means—

(a) the responsible medical practitioner; or

(b) if it is not practicable for that practitioner to carry out the examination under this paragraph, another medical practitioner meeting prescribed conditions.

(5) A medical practitioner carrying out an examination under this paragraph must immediately make a report in the prescribed form of the examination.

(6) The report must include a statement by the person making the report as to whether, in that person’s opinion, the condition in paragraph 12 is met.

(7) If the report states that in the opinion of the person making the report that condition is not met, the making of the report is an event which terminates the authorisation.

(8) A person who makes a report under this paragraph must immediately give the report to the managing authority of the hospital.

Expiry 14 days after date of further report

15.—(1) This paragraph applies where a report under paragraph 14 has been made and the report was not such as to terminate the authorisation.

(2) The expiry of the remaining period allowed is an event which terminates the authorisation.

(3) “The remaining period allowed” is the period of 14 days beginning with the day after the date the report under paragraph 14 is made.

Discharge

16.—(1) If—

(a) pursuant to a report under paragraph 2, P is admitted to the hospital specified in the report, or

(b) P is treated under paragraph 1(5) as so admitted,

and P is subsequently discharged from detention, that discharge is an event which terminates the authorisation.

(2) For the purposes of this paragraph P is “discharged from detention” if P is informed in writing by the responsible medical practitioner that he or she is discharged from detention.

Unreasonable delay in taking certain steps

17.—(1) If—

(a) pursuant to a report under paragraph 2, P is admitted to the hospital specified in the report, or

(b) P is treated under paragraph 1(5) as so admitted,

and subsequently there is an unreasonable delay in taking a relevant step, the start of that delay is an event which terminates the authorisation.

(2) In this paragraph a “relevant step” means making an application under Schedule 1 where a measure that would need authorisation under that Schedule is proposed in relation to P.

Part 4 Supplementary provisions

Detention covered by authorisation

18.—(1) This paragraph applies where a report is made under paragraph 2.

(2) The authorisation granted by the making of the report authorises—

(a) the detention (at any time when the authorisation is in force) of P in the hospital specified in the report for the purposes of examination, or of any treatment or care following examination;

(b) any related detention which may occur while the authorisation is in force.

(3) In sub-paragraph (2) “related detention” means—

(a) any detention of P while P is being taken to the hospital specified in the report;

(b) any detention of P while P is absent from the hospital, if the detention—

(i) is in pursuance of a condition imposed in accordance with section 27 (permission for absence from hospital); and

(ii) is for no longer than 7 days.

(4) In sub-paragraphs (2) and (3) “detention” means detention in circumstances amounting to a deprivation of liberty.

(5) Nothing in the authorisation or this paragraph affects the operation of this Part of this Act in relation to any detention of P in circumstances not amounting to a deprivation of liberty.

Relationship with other conditions

19.  For the avoidance of doubt, the fact that a particular measure is authorised by an authorisation under this Schedule does not affect the need for the other conditions of this Part of this Act that apply to be met in respect of any act which is, or is part of, that measure.

Rectification of reports: correction of administrative errors

20.—(1) Where a report under this Schedule is incorrect or defective in any respect as a result of an administrative error, the appropriate person may (subject to sub-paragraph (3)) amend the report for the purpose of correcting the error.

(2) “The appropriate person”, in relation to a report (“the relevant report”), means—

(a) if the relevant report is a report under paragraph 2 and the amendment is to the medical report included in the relevant report, the person who signed the medical report;

(b) otherwise, the person who signed the relevant report.

(3) An amendment under this paragraph may be made only—

(a) with the consent of the managing authority of the hospital specified in the report; and

(b) before the end of the permitted period.

(4) Where an amendment under this paragraph is made to a report, the report is to have effect, and to be treated as always having had effect, as if it had been originally made as so amended.

(5) In this paragraph “the permitted period” means the period of 28 days beginning with the date of admission (as defined by paragraph 14(3)).

Rectification of reports: substitution of medical reports

21.—(1) This paragraph applies where—

(a) a report under paragraph 2 (“the authorisation report”) has been made; and

(b) at any time before the end of the permitted period it appears to the managing authority that the medical report included in the authorisation report does not comply with the requirements of paragraph 4.

(2) The managing authority may, before the end of the permitted period, give notice in writing to that effect to the person who signed the authorisation report.

(3) Where any such notice is given, the medical report is to be disregarded.

(4) But if, before the end of the permitted period—

(a) a fresh medical report is made in accordance with paragraph 4, and

(b) the fresh report states that in the opinion of the person making the report the condition in paragraph 12 is met, and has been met at all times since the making of the medical report mentioned in sub-paragraph (1)(b),

the authorisation report is valid, and is to be treated as always having been valid.

(5) Nothing in this paragraph limits the application of paragraph 20.

(6) In this paragraph—

“the managing authority” means the managing authority of the hospital specified in the authorisation report;

“the permitted period” has the same meaning as in paragraph 20.

22.—(1) This paragraph applies where—

(a) a report under paragraph 2 (“the authorisation report”) has been made in respect of a person (“P”); and

(b) at any time before the end of the permitted period, it appears to the managing authority that a report under paragraph 11, 13 or 14 made in respect of P (“the original report”) does not comply with the requirements of that paragraph (“the relevant paragraph”).

(2) The managing authority may, before the end of the permitted period, give notice in writing to that effect to the person who signed the authorisation report.

(3) Where any such notice is given, the original report is to be disregarded.

(4) But if, before the end of the permitted period—

(a) P is examined, and a fresh report is made, in accordance with the requirements of the relevant paragraph (except any requirements as to the timing of the examination or report), and

(b) the fresh report states that in the opinion of the person making the report the condition in paragraph 12 is met, and has been met at all times since the making of the original report,

the authorisation has effect, and is treated as always having had effect, as if it had not expired by virtue of the relevant paragraph.

(5) Nothing in this paragraph limits the application of paragraph 20.

(6) In this paragraph—

“the managing authority” has the same meaning as in paragraph 21;

“the permitted period” has the same meaning as in paragraph 20.

Section 40.

SCHEDULE 3 Extension by panel of period of authorisation

Preliminary

1.  In this Schedule—

“authorisation” is defined by section 37;

“authorised measure” and “measure” are defined by section 41(1) and (2);

“the criteria for continuation” is defined by section 41(3) and (4);

“the current period” of an authorisation means the period of the authorisation at the time the application under this Schedule is made;

“the period” and “the initial period” of an authorisation are defined by section 37;

“the relevant trust” has the meaning given by paragraph 2(3).

Applications for extension

2.—(1) An application under this Schedule may be made where—

(a) an authorisation in respect of a person (“P”) has been granted (and has not been revoked);

(b) the period of the authorisation has not ended;

(c) it has been proposed that the period of the authorisation should be extended under section 37 or 38; and

(d) an extension under that section is not possible, because the person who is the responsible person for the purposes of section 39 is not of the opinion that the criteria for continuation are met in relation to each authorised measure that is proposed to be continued after the end of the current period.

(2) An application under this Schedule is an application to the relevant trust for an extension of the period of the authorisation.

(3) In this Schedule “the relevant trust” means—

(a) where the proposed extension would be wholly or partly for the purposes of continuing P’s detention in a place, the HSC trust in whose area that place is situated;

(b) where the proposed extension would be wholly or partly for the purposes of continuing the provision to P of treatment specified by the authorisation or a requirement to attend for such treatment, and head (a) does not apply, the HSC trust in whose area the treatment is provided;

(c) where the proposed extension would be for the purposes of continuing a community residence requirement and head (b) does not apply, the HSC trust in whose area the place where P is required by the community residence requirement to live is situated.

Who may make application

3.—(1) Any application under this Schedule must be made by a person who—

(a) is of a prescribed description; and

(b) is unconnected with P (see section 304).

(2) Regulations under sub-paragraph (1)(a) may in particular prescribe, as a description of persons who may make an application under this Schedule—

(a) an approved social worker;

(b) a person of a prescribed description who is designated by the managing authority of a hospital or care home in which P is an in-patient or resident as a person who may make applications under this Schedule;

(c) a person of a prescribed description who is designated by an appropriate person (as defined by the regulations) as a person who may make applications under this Schedule.

Contents of application

4.—(1) An application under this Schedule must—

(a) be in the prescribed form;

(b) specify the authorised measure (or, if more than one, each authorised measure) that is proposed to be continued after the end of the current period;

(c) include a medical report (see paragraph 5);

(d) include a care plan (see paragraph 6);

(e) include prescribed information about the views, on prescribed matters, of P’s nominated person and any prescribed person; and

(f) include any other prescribed information.

(2) If—

(a) the application specifies a measure within section 41(2)(b) or (d) (deprivation of liberty or community residence requirement), and

(b) the person making the application is of the opinion that, if the period of the authorisation were extended, P would lack (or would probably lack) capacity in relation to whether an application under section 45 (applications to Tribunal) should be made,

the application must contain a statement of that opinion.

Medical report

5.—(1) The medical report must be in the prescribed form and must—

(a) be made by a medical practitioner who is unconnected with P and is permitted by regulations under section 300 to make the report;

(b) include a statement by the medical practitioner that, in his or her opinion, the criteria for continuation are met in respect of each measure specified under paragraph 4(1)(b); and

(c) include any prescribed information.

(2) The medical practitioner must have examined P not more than two days before the date when the report is made.

(3) See also sections 54 and 55 (involvement of nominated person and independent mental capacity advocate).

Care plan

6.  The care plan must be in the prescribed form and must include such information relating to what is proposed as may be prescribed.

Panel to consider application

7.—(1) Where the relevant trust receives an application duly made under this Schedule, it must as soon as practicable—

(a) give prescribed information to P and any prescribed person; and

(b) constitute a panel to consider the application.

(2) See also section 297 (general provision about panels).

Decision on application

8.—(1) Having considered the application, the panel must either—

(a) extend the period of the authorisation in accordance with sub-paragraph (2); or

(b) refuse the application.

(2) An extension under sub-paragraph (1)(a) must be—

(a) if the period of the authorisation has not previously been extended, for the period of 6 months beginning immediately after the end of the initial period;

(b) if the period of the authorisation has previously been extended under section 37 or 38 or this Schedule, for the period of one year beginning immediately after the end of the current period.

(3) The panel may extend the period of the authorisation only if—

(a) where there is one specified measure, the panel considers that the criteria for continuation are met in respect of that measure;

(b) where there are two or more specified measures, the panel considers that the criteria for continuation are met in respect of at least one of those measures.

(4) Where the panel extends the period of the authorisation and either—

(a) there is a specified measure as respects which the panel does not consider that the criteria for continuation are met, or

(b) there is a measure authorised by the authorisation which is not specified,

the panel must cancel the provision of the authorisation which authorises that measure.

(5) A cancellation under sub-paragraph (4) takes effect from the end of the current period.

(6) If the current period ends without the period of the authorisation having been extended, the period of the authorisation may not be extended.

(7) In this paragraph references to a “specified” measure are to a measure specified under paragraph 4(1)(b).

Time limit for panel’s decision, and duty to notify decision

9.—(1) The panel must comply with paragraph 8(1) as soon as practicable and in any case no later than the end of the permitted period.

(2) The “permitted period” is the period of 7 working days beginning with the day on which the application is received by the trust (or, if that day is not a working day, beginning with the first working day after that).

(3) As soon as practicable after granting or refusing an extension under paragraph 8, the panel must give to P and any prescribed person—

(a) written notice of the grant or refusal; and

(b) any prescribed information.

(4) Regulations under sub-paragraph (3) must ensure that the Attorney General is given notice in any case where—

(a) the panel extends the period of an authorisation;

(b) the authorisation authorises a measure within section 41(2)(b) or (d) (deprivation of liberty or community residence requirement), and will do so after the end of the current period; and

(c) the application under this Schedule contained the statement mentioned in paragraph 4(2) (statement that P lacks, or probably lacks, capacity in relation to making of Tribunal application).

Section 97.

SCHEDULE 4 Lasting powers of attorney: formalities

Part 1 Making instruments

General requirements as to making instruments

1.—(1) An instrument is made in accordance with this Schedule only if—

(a) it is in a form specified by regulations or by the Public Guardian in accordance with regulations;

(b) it complies with paragraph 2; and

(c) any prescribed requirements in connection with its execution are met.

(2) Regulations may make different provision according to whether the instrument relates to—

(a) care, treatment and personal welfare (or any of those matters); or

(b) property and affairs; or

(c) matters within both head (a) and head (b).

(3) Regulations may also make different provision according to whether only one or more than one attorney or replacement attorney is to be appointed (and if more than one, whether jointly or jointly and severally).

(4) In this Schedule—

(a) “intended attorney”, in relation to an instrument, means a person who if the instrument were registered and a lasting power of attorney were created would be an attorney under the lasting power;

(b) “replacement attorney” means a person appointed under section 103(1)(b) to replace a person appointed as an attorney.

(5) In paragraphs 7, 14, 15, 17 and 26, references to a person appointed as an attorney or replacement attorney do not include a person whose appointment has terminated.

Requirements as to content of instruments

2.—(1) The instrument must include—

(a) the prescribed information about the purpose of the instrument and the effect of a lasting power of attorney;

(b) a statement by the donor to the effect that the donor—

(i) has read the prescribed information or a prescribed part of it (or has heard it read); and

(ii) intends the authority conferred by the instrument to include authority to make decisions on the donor’s behalf in circumstances where the donor no longer has capacity;

(c) a statement by the donor—

(i) naming a person or persons whom the donor wishes to be notified of any application for the registration of the instrument; or

(ii) stating that there are no persons whom the donor wishes to be notified of any such application;

(d) a statement by each person appointed as attorney, and each person (if any) appointed as replacement attorney, to the effect that he or she—

(i) has read the prescribed information or a prescribed part of it (or has heard it read); and

(ii) understands the duties imposed by sections 1, 2, 5 and 7 (principles, best interests) on an attorney under a lasting power of attorney; and

(e) a certificate by a person of a prescribed description that, in that person’s opinion, at the time when the donor executes the instrument—

(i) the donor understands the purpose of the instrument and the scope of the authority conferred by it;

(ii) no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney; and

(iii) there is nothing else which would prevent a lasting power of attorney from being created by the instrument.

(2) Regulations may prescribe a maximum number of persons who may be named under sub-paragraph (1)(c).

(3) The persons who may be named under sub-paragraph (1)(c) do not include a person who is appointed as attorney or replacement attorney by the instrument.

(4) A certificate under sub-paragraph (1)(e)—

(a) must be made in a form specified by regulations or by the Public Guardian in accordance with regulations; and

(b) must include any prescribed information.

(5) The certificate may not be given by a person appointed as attorney or replacement attorney by the instrument.

Failure to comply with required form

3.—(1) If an instrument differs in an immaterial respect in form or mode of expression from the form specified under paragraph 1(1)(a), it is to be treated by the Public Guardian as sufficient in point of form and expression.

(2) The court may declare that an instrument which is not in the form specified under paragraph 1(1)(a) is to be treated as if it were in that form, if the court is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.

Part 2 Registration

Applications and procedure for registration

4.—(1) An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney—

(a) must be made in a form specified by regulations or by the Public Guardian in accordance with regulations; and

(b) must include any prescribed information.

(2) The application may be made—

(a) by the donor;

(b) by the intended attorney or intended attorneys; or

(c) if there are two or more intended attorneys who are to act jointly and severally in respect of any matter, by any of them.

(3) The application must be accompanied by—

(a) the instrument; and

(b) any fee provided for under section 116 of the Judicature (Northern Ireland) Act 1978.

5.  Subject to paragraphs 10 to 14, on an application under paragraph 4 the Public Guardian must register the instrument as a lasting power of attorney at the end of the prescribed period.

Notification requirements

6.  A person (or persons) about to make an application under paragraph 4 must notify any persons named under paragraph 2(1)(c) that the application is about to be made.

7.—(1) As soon as practicable after receiving an application under paragraph 4, the Public Guardian must notify the persons within sub-paragraph (2) that the application has been received.

(2) The persons to be notified are all of the following (except the person or persons who have made the application)—

(a) the donor;

(b) each person appointed as attorney;

(c) each person (if any) appointed as replacement attorney.

8.—(1) A notice under paragraph 6 must be in a form specified by regulations or by the Public Guardian in accordance with regulations.

(2) A notice under paragraph 6 or 7 must include any prescribed information.

Power to dispense with notification requirements

9.—(1) A person proposing to make an application under paragraph 4 may apply to the court for an order dispensing with the requirement to notify under paragraph 6.

(2) The court may make such an order if satisfied that the notification would serve no useful purpose.

Instrument not properly made

10.  If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, the Public Guardian must not register the instrument unless directed to do so by the court.

Instrument containing ineffective provision

11.—(1) Sub-paragraph (2) applies if it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 contains a provision which—

(a) would be ineffective as part of a lasting power of attorney; or

(b) would prevent the instrument from operating as a valid lasting power of attorney.

(2) The Public Guardian—

(a) must apply to the court for it to determine the matter under section 111(1); and

(b) pending the determination by the court, must not register the instrument.

(3) Sub-paragraph (4) applies if the court determines under section 111(1) (whether or not on an application by the Public Guardian) that an instrument executed with a view to creating a lasting power of attorney contains a provision which—

(a) would be ineffective as part of a lasting power of attorney; or

(b) would prevent the instrument from operating as a valid lasting power of attorney.

(4) The court must—

(a) notify the Public Guardian that it has severed the provision; or

(b) direct the Public Guardian not to register the instrument.

(5) Where the court notifies the Public Guardian that it has severed a provision, the Public Guardian must register the instrument with a note to that effect attached to it.

Deputy already appointed

12.—(1) Sub-paragraph (2) applies if it appears to the Public Guardian that—

(a) there is a deputy appointed by the court for the donor; and

(b) the powers conferred on the deputy would, if the instrument were registered, to any extent conflict with the powers conferred on the attorney.

(2) The Public Guardian must not register the instrument unless directed by the court to do so.

Objection by attorney, replacement attorney or named person

13.—(1) Sub-paragraph (2) applies if a person other than the donor—

(a) is notified under paragraph 6 or 7 of an application for the registration of an instrument; and

(b) before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration on the ground that the instrument has been revoked.

(2) If the Public Guardian is satisfied that the ground for making the objection is established, the Public Guardian must not register the instrument unless the court, on the application of the person applying for the registration—

(a) is satisfied that the ground is not established; and

(b) directs the Public Guardian to register the instrument.

(3) Sub-paragraph (4) applies if a person other than the donor—

(a) is notified under paragraph 6 or 7 of an application for the registration of an instrument; and

(b) before the end of the prescribed period—

(i) makes an application to the court objecting to the registration on a prescribed ground; and

(ii) notifies the Public Guardian of the application.

(4) The Public Guardian must not register the instrument unless directed by the court to do so.

Objection by donor

14.—(1) This paragraph applies if the donor—

(a) is notified under paragraph 7 of an application for the registration of an instrument; and

(b) before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration.

(2) The Public Guardian must not register the instrument unless the court, on the application of a person appointed as attorney or replacement attorney—

(a) is satisfied that the donor lacks capacity to object to the registration; and

(b) directs the Public Guardian to register the instrument.

Notification of registration

15.  Where an instrument is registered under this Schedule, the Public Guardian must notify—

(a) the donor;

(b) each person appointed as attorney; and

(c) each person (if any) appointed as replacement attorney.

Evidence of registration

16.—(1) A document purporting to be an office copy of an instrument registered under this Schedule is evidence of—

(a) the contents of the instrument; and

(b) the fact that it has been registered.

(2) Sub-paragraph (1) is without prejudice to section 3 of the Powers of Attorney Act 1971 (proof by certified copy) and to any other method of proof authorised by law.

Part 3 Cancellation of registration and notification of severance

Cancellation of registration by Public Guardian following revocation

17.  The Public Guardian must cancel the registration of an instrument as a lasting power of attorney on being satisfied that the power has been revoked or has otherwise come to an end.

Court to require Public Guardian to cancel registration in certain cases

18.  The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—

(a) determines under section 110(2)(a) that a requirement for creating the lasting power of attorney was not met;

(b) determines under section 110(2)(b) that the lasting power of attorney has been revoked or has otherwise come to an end; or

(c) revokes the lasting power of attorney under section 110(4)(b) (fraud etc).

Notification by court of ineffective provision etc in instrument

19.—(1) Sub-paragraph (2) applies if the court determines under section 111(1) that a lasting power of attorney contains a provision which—

(a) is ineffective as part of a lasting power of attorney; or

(b) prevents the instrument from operating as a valid lasting power of attorney.

(2) The court must—

(a) notify the Public Guardian that it has severed the provision; or

(b) direct the Public Guardian to cancel the registration of the instrument as a lasting power of attorney.

Notification on cancellation

20.  If the Public Guardian cancels the registration of an instrument as a lasting power of attorney, the Public Guardian must notify—

(a) the donor;

(b) each person appointed as attorney; and

(c) each person (if any) appointed as replacement attorney.

Delivery up of instrument on cancellation

21.  On the cancellation of the registration of an instrument, the instrument and any office copies of it must be delivered up to the Public Guardian to be cancelled.

Part 4 Records of alterations in registered powers

Partial revocation or suspension of power as a result of bankruptcy

22.  If in the case of a registered instrument it appears to the Public Guardian that under section 106 or 107 a lasting power of attorney is revoked, or suspended, in relation to the donor's property and affairs (but not in relation to other matters), the Public Guardian must attach to the instrument a note to that effect.

Termination of appointment of attorney which does not revoke power

23.  If in the case of a registered instrument it appears to the Public Guardian that an event has occurred which—

(a) has terminated the appointment of the attorney, but

(b) has not revoked the instrument,

the Public Guardian must attach to the instrument a note to that effect.

Replacement of attorney

24.  If in the case of a registered instrument it appears to the Public Guardian that a person appointed as attorney has been replaced under the terms of the instrument, the Public Guardian must attach to the instrument a note to that effect.

Severance of ineffective provisions

25.  If in the case of a registered instrument the court notifies the Public Guardian under paragraph 19(2)(a) that it has severed a provision of the instrument, the Public Guardian must attach to the instrument a note to that effect.

Notification of alterations

26.  If the Public Guardian attaches a note to an instrument under any of paragraphs 22 to 25, the Public Guardian must give notice of the note to—

(a) each person appointed as attorney; and

(b) each person (if any) appointed as replacement attorney.

Section 115(4).

SCHEDULE 5 Property and affairs: supplementary provisions

Wills: introductory

1.  Paragraphs 2 to 4 apply in relation to the execution of a will on behalf of P by virtue of section 115.

Provision that may be made in will

2.  The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if P had capacity to make it.

Wills: requirements relating to execution

3.—(1) Sub-paragraph (2) applies if under section 113 the court makes an order or gives directions requiring or authorising a person (“the authorised person”) to execute a will on behalf of P.

(2) Any will executed in pursuance of the order or direction—

(a) must state that it is signed by P acting by the authorised person;

(b) must be signed by the authorised person with the name of P and the authorised person’s own name, in the presence of two or more witnesses present at the same time;

(c) must be attested and subscribed by those witnesses in the presence of the authorised person; and

(d) must be sealed with the official seal of the court.

Wills: effect of execution

4.—(1) This paragraph applies where a will is executed in accordance with paragraph 3.

(2) The Wills and Administration Proceedings (Northern Ireland) Order 1994 (“the 1994 Order”) has effect in relation to the will as if it were signed by P by P’s own hand, except that—

(a) Article 5 of the 1994 Order (formalities for execution) does not apply; and

(b) in the subsequent provisions of the 1994 Order any reference to execution in accordance with Article 5 or execution in the manner in which a will is required to be executed is to be read as a reference to execution in the manner in which a will is required to be executed under paragraph 3(2).

(3) The will has the same effect for all purposes as if—

(a) P had had the capacity to make a valid will; and

(b) the will had been executed by P in the manner required by the 1994 Order.

(4) But sub-paragraph (3) does not have effect in relation to the will—

(a) in so far as it disposes of immovable property outside Northern Ireland; or

(b) in so far as it relates to any property or matter other than immoveable property if, when the will is executed—

(i) P is domiciled outside Northern Ireland; and

(ii) the condition in sub-paragraph (5) is met.

(5) The condition is that, under the law of P’s domicile, any question of P’s testamentary capacity would fall to be determined in accordance with the law of a place outside Northern Ireland.

Vesting orders ancillary to settlement etc

5.—(1) If provision is made by virtue of section 115 for—

(a) the settlement of any property of P, or

(b) the exercise of a power vested in P of appointing trustees or retiring from a trust,

the court may also make as respects the property settled or the trust property such consequential vesting or other orders as the case may require.

(2) The power under sub-paragraph (1) includes, in the case of the exercise of such a power, any order which could have been made in such a case under Part 4 of the Trustee Act (Northern Ireland) 1958.

Variation of settlements

6.—(1) If a settlement has been made by virtue of section 115, the court may by order vary or revoke the settlement if—

(a) the settlement makes provision for its variation or revocation;

(b) the court is satisfied that a material fact was not disclosed when the settlement was made; or

(c) the court is satisfied that there has been a substantial change of circumstances.

(2) Any such order may give such consequential directions as the court considers appropriate.

(3) Section 113(7) (variation and discharge of court orders) is subject to this paragraph.

Transfer of stock to appointee outside Northern Ireland

7.—(1) Sub-paragraph (2) applies if the court is satisfied—

(a) that under the law prevailing in a place outside Northern Ireland a person (“M”) has been appointed to exercise powers in respect of the property or affairs of P on the ground (however formulated) that P lacks capacity to make decisions with respect to the management and administration of P’s property and affairs; and

(b) that, having regard to the nature of the appointment and to the circumstances of the case, it is appropriate for the court to exercise its powers under this paragraph.

(2) The court may direct—

(a) any stocks standing in the name of P, or

(b) the right to receive dividends from the stocks,

to be transferred into M’s name or otherwise dealt with as required by M, and may give such directions as the court considers appropriate for dealing with accrued dividends from the stocks.

(3) In this paragraph “stocks” includes—

(a) shares, and

(b) any funds, annuity or security transferable in the books kept by any body corporate or unincorporated company or society or by an instrument of transfer either alone or accompanied by other formalities,

and “dividends” is to be construed accordingly.

Preservation of interests in property disposed of on behalf of person lacking capacity

8.—(1) Sub-paragraphs (2) and (3) apply if—

(a) P’s property has been disposed of by virtue of section 115;

(b) under P’s will or intestacy, or by a gift perfected or nomination taking effect on P’s death, any other person would have taken an interest in the property but for the disposal; and

(c) on P’s death, any property belonging to P’s estate represents the property disposed of.

(2) The person takes the same interest, if and so far as circumstances allow, in the property representing the property disposed of.

(3) If the property disposed of was real property, any property representing it is to be treated, so long as it remains part of P’s estate, as if it were real property.

(4) The court may direct that, on a disposal of P’s property—

(a) which is made by virtue of section 115, and

(b) which would apart from this paragraph result in the conversion of personal property into real property,

property representing the property disposed of is to be treated, so long as it remains P’s property or forms part of P’s estate, as if it were personal property.

(5) References in sub-paragraphs (1) to (4) to the disposal of property are to—

(a) the sale, exchange, charging of or other dealing (otherwise than by will) with property other than money,

(b) the removal of property from one place to another,

(c) the application of money in acquiring property,

(d) the transfer of money from one account to another,

and references to property representing property disposed of are to be construed accordingly and as including the result of successive disposals.

(6) The court may give such directions as appear to it appropriate for the purpose of facilitating the operation of sub-paragraphs (1) to (3), including the carrying of money to a separate account and the transfer of property other than money.

9.—(1) Sub-paragraph (2) applies if the court has ordered or directed the expenditure of money—

(a) for carrying out permanent improvements on any of P’s property; or

(b) otherwise for the permanent benefit of any of P’s property.

(2) The court may order that—

(a) the whole of the money expended or to be expended, or

(b) any part of it,

is to be a charge on the property either without interest or with interest at a specified rate.

(3) An order under sub-paragraph (2) may provide for excluding or restricting the operation of paragraph 8(1) to (3).

(4) A charge under sub-paragraph (2) may be made in favour of such person as may be just and, in particular, where the money charged is paid out of P’s general estate, may be made in favour of a person as trustee for P.

(5) No charge under sub-paragraph (2) may confer any right of sale or foreclosure during P’s lifetime.

Section 184.

SCHEDULE 6 Extension by panel of public protection order without restrictions

Preliminary

1.  In this Schedule, in relation to a public protection order without restrictions—

“the criteria for continuation” has the meaning given by section 185;

“the establishment concerned” has the meaning given by paragraph 2(3);

“the person concerned” means the person to whom the order relates;

“the relevant trust” has the meaning given by paragraph 2(3);

“the responsible social worker” means the approved social worker who is in charge of the person concerned’s case.

Applications for extension of public protection order without restrictions

2.—(1) An application under this Schedule may be made where—

(a) a public protection order without restrictions has been made;

(b) the person concerned is still liable to be detained under the order;

(c) it has been proposed that the period of the order should be extended under section 181 or 182; and

(d) an extension under that section is not possible, because the responsible social worker does not consider that the criteria for continuation are met.

(2) An application under this Schedule is an application to the relevant trust for an extension of the period of the order.

(3) In this Schedule—

“the relevant trust” means the HSC trust in whose area the establishment concerned is situated;

“the establishment concerned” means the establishment in which the person concerned would be liable to be detained if the period of the order were extended.

Who may make application

3.—(1) Any application under this Schedule must be made by a person who—

(a) is of a prescribed description; and

(b) is unconnected with the person concerned.

(2) Regulations under sub-paragraph (1)(a) may in particular prescribe, as a description of persons who may make an application under this Schedule—

(a) an approved social worker;

(b) a person of a prescribed description who is designated by the managing authority of the establishment concerned as a person who may make applications under this Schedule.

Contents of application

4.  An application under this Schedule must—

(a) be in the prescribed form;

(b) include a medical report (see paragraph 5);

(c) include a care plan (see paragraph 6);

(d) include prescribed information about the views of any prescribed person; and

(e) include any prescribed information.

Medical report

5.—(1) The medical report must be in the prescribed form and must—

(a) be made by a medical practitioner who is unconnected with the person concerned and is permitted by regulations under section 300 to make the report;

(b) include a statement by the person making the medical report that, in that person’s opinion, the criteria for continuation are met; and

(c) include any prescribed information.

(2) The maker of the medical report must have examined the person concerned not more than two days before the date when the report is made.

Care plan

6.  The care plan must be in the prescribed form and must include such information relating to what is proposed as may be prescribed.

Panel to consider application

7.—(1) Where the relevant trust receives an application duly made under this Schedule, it must as soon as practicable—

(a) give prescribed information to the person concerned and any prescribed person; and

(b) constitute a panel to consider the application.

(2) Section 297 (general provision about panels) applies to a panel constituted under this paragraph.

Decision on application

8.—(1) Having considered the application, the panel must do one of the following—

(a) extend the period of the order in accordance with sub-paragraph (2);

(b) refuse the application.

(2) The panel may only extend the period of the order as follows—

(a) where the period of the order has not previously been extended, the extension must be 6 months beginning immediately after the date when the period of the order would otherwise end;

(b) where the period of the order has previously been extended under section 181 or 182 or this Schedule, the extension must be one year beginning immediately after the date when the period of the order would otherwise end.

(3) The panel may extend the period of the order only if it considers that the criteria for continuation are met.

(4) No extension of the period of the order may be made at a time after the person concerned has ceased to be liable to be detained under the order.

Time limit for panel’s decision, and duty to notify decision

9.—(1) The panel must comply with paragraph 8(1) as soon as practicable and in any case no later than the end of the permitted period.

(2) The “permitted period” is 7 working days beginning with the day on which the application is received by the trust (or, if that day is not a working day, beginning with the first working day after that).

(3) As soon as practicable after granting or refusing an extension under paragraph 8, the panel must give written notice of the grant or refusal, and any prescribed information, to the person concerned and any prescribed person.

Section 207.

SCHEDULE 7 Supervision and assessment orders

Part 1 Introductory

Introductory

1.—(1) In this Part a “supervision and assessment order” is an order made in respect of a person (“the supervised person”) containing—

(a) a supervision element (see paragraph 3), and

(b) an assessment element (see paragraph 4).

(2) A supervision and assessment order may also include a residence element (see paragraph 5).

(3) In this Schedule, references to the commission of offences by a person include the commission of offences in the circumstances described in section 206 (finding that person not guilty on the ground of insanity).

Part 2 Making and contents of order

Conditions which must be satisfied before order can be made

2.—(1) A court may make a supervision and assessment order only if the following four conditions are met.

(2) The first condition is that the court is satisfied, on the required medical evidence, that the supervised person has a disorder, or that there is reason to suspect that the supervised person has a disorder.

(3) The second condition is that the court is satisfied, on the required medical evidence, that examination of the supervised person (“S”) is necessary or desirable for the assessment of one or both of the following—

(a) whether the disorder requires treatment;

(b) whether consent to the giving of such treatment will be given by S, or by a person with authority to give consent on behalf of S, or whether such treatment will be capable of being given to S by virtue of Part 2 of this Act (or, if S is under 16, under the Mental Health Order).

(4) The third condition is that the court is satisfied that supervision under the order is desirable in the interests of—

(a) securing the rehabilitation of the supervised person, or

(b) protecting the public from harm from that person or preventing the commission by that person of offences.

(5) The fourth condition is that the court is satisfied that the making of such an order is the most suitable means of dealing with the supervised person.

(6) In this paragraph “the required medical evidence” means the written or oral evidence of at least two medical practitioners, including—

(a) if the disorder is mental disorder, the oral evidence of an approved medical practitioner;

(b) otherwise, the oral evidence of a medical practitioner who appears to the court to have special experience in the diagnosis or treatment of the disorder.

Supervision element

3.—(1) A supervision element is a requirement that the supervised person be under the supervision of—

(a) a social worker, or

(b) a probation officer,

for a period specified in the order (“the supervision period”), which must be not less than 6 months and not more than 3 years.

(2) The social worker or probation officer is referred to in this Schedule as “the supervising officer”.

(3) The court must not make a supervision and assessment order unless it is satisfied that the supervising officer is willing to undertake the supervision.

(4) If the supervising officer is a social worker—

(a) the supervision and assessment order must specify the HSC trust for the area in which the supervised person resides or will reside, and

(b) the social worker must be an approved social worker appointed as such by that trust.

Assessment element

4.—(1) An assessment element is a requirement that, during a specified period (“the assessment period”), the supervised person must—

(a) attend at a specified place at a specified time or times, or

(b) make himself or herself available at a specified place at a specified time or times,

for assessment by or under the direction of a medical practitioner.

(2) The assessment period may be the whole or any part of the supervision period.

(3) Assessment under sub-paragraph (1) is to be assessment of such of the following as the medical practitioner considers appropriate at the time of the assessment—

(a) the supervised person’s condition;

(b) either or both of the matters mentioned in paragraph 2(3)(a) and (b).

(4) In sub-paragraph (1) “specified” means specified in the order.

Residence element

5.—(1) A residence element is any requirement as to the residence of the supervised person during a period specified in the order (“the residence period”).

(2) The residence period may be the whole or any part of the supervision period.

(3) Before including a residence element, the court must consider the home surroundings of the supervised person.

(4) A residence element may not require the supervised person to reside as an in-patient or resident in a hospital or care home.

Procedural requirements relating to the making of the order

6.—(1) Before making a supervision and assessment order, the court must explain to the supervised person in ordinary language—

(a) the effect of each of the elements included in the order, and

(b) that a court of summary jurisdiction, and the court making the order, have power under paragraphs 8 to 10, 11 and 13 to review the order on the application either of the supervised person or the supervising officer.

(2) After making an order, the court must as soon as practicable—

(a) give at least 2 copies of the order to the supervising officer, and

(b) if the supervising officer is a social worker, send at least 1 copy of the order to the Probation Board.

(3) The supervising officer must give a copy of the order to the supervised person.

Part 3 Effect of order

7.  Where an order is made, the supervised person must (as well as complying with the assessment element and any residence element) keep in touch with the supervising officer in accordance with such instructions as that officer may from time to time give, and must notify the supervising officer of any change of address.

Part 4 Amendment or revocation of order

Amendment of order: general

8.—(1) A court of summary jurisdiction may, on the application of the supervised person or the supervising officer, amend a supervision and assessment order—

(a) by cancelling any of the requirements of the order; or

(b) by inserting in the order (either in addition to or in substitution for any such requirement) any requirement which the court could include if it were the court by which the order was made and were then making it.

(2) The power of a court under sub-paragraph (1) does not include power to amend an order by extending any period specified in it beyond the end of 3 years from the date of the original order.

Amendment of order: change of area of residence

9.—(1) This paragraph applies where—

(a) a supervision and assessment order requires the supervised person to be under the supervision of a social worker, and

(b) (in accordance with paragraph 3(4)) the order specifies the HSC trust for the area in which the person resides (“the current trust”).

(2) If a court of summary jurisdiction is satisfied that the supervised person proposes to change, or has changed, his residence to the area of another HSC trust, the court may amend the order by substituting, for the current trust, the other HSC trust.

(3) The court must amend the order as mentioned in sub-paragraph (2) if the supervising officer applies for it to do so.

(4) Where—

(a) the court amends a supervision and assessment order under this paragraph, and

(b) the order contains requirements which in the opinion of the court cannot be complied with if the supervised person ceases to reside in the area of the current trust,

the court must either cancel those requirements or substitute for them other requirements which can be complied with if the supervised person ceases to reside in that area.

Medical reports

10.—(1) In this paragraph “relevant medical practitioner” means a medical practitioner by whom or under whose direction the supervised person—

(a) has been assessed in pursuance of a supervision and assessment order, or

(b) is being treated for a disorder in pursuance of such an order.

(2) Sub-paragraph (3) applies where any of the following conditions is met—

(a) the order requires the supervised person to attend or make himself or herself available for assessment at specified intervals, but a relevant medical practitioner considers that assessment at longer intervals is sufficient for the purposes mentioned in paragraph 2(3)(a) and (b);

(b) a relevant medical practitioner considers that it is necessary or desirable, for the purposes mentioned in paragraph 2(3)(a) and (b), to assess the supervised person more frequently than specified in the order;

(c) a relevant medical practitioner considers that the supervised person no longer requires treatment for his or her disorder;

(d) a relevant medical practitioner considers that the supervised person’s disorder is not (or is no longer) susceptible to treatment;

(e) a relevant medical practitioner considers that the assessment period should be extended (subject to sub-paragraph (5));

(f) a relevant medical practitioner is for any reason unwilling to continue to assess or treat, or direct the assessment or treatment of, the supervised person;

(g) a relevant medical practitioner becomes aware that the supervised person has been admitted to hospital as an in-patient.

(3) The relevant medical practitioner must make a report in writing to that effect to the supervising officer.

(4) The supervising officer must—

(a) in the case of a report made as mentioned in sub-paragraph (2)(a), inform the court which made the order;

(b) in the case of a report made as mentioned in sub-paragraph (2)(b) to (f), apply to a court of summary jurisdiction for the order to be amended as the court considers appropriate (including by cancelling the assessment element);

(c) in the case of a report made as mentioned in sub-paragraph (2)(g), apply to a court of summary jurisdiction for the assessment element to be suspended whilst the supervised person remains an in-patient.

(5) On an application made in the case of a report made as mentioned in sub-paragraph (2)(e)—

(a) if the court considers it appropriate for the assessment period to end later than the end of the existing supervision period, the court may extend the supervision period;

(b) the assessment period (as extended) must not end later than the end of the supervision period (as extended); and

(c) neither period may be extended beyond the end of 3 years from the date of the original order.

Revocation of order

11.—(1) A court that has made a supervision and assessment order may, on the application of the supervised person or the supervising officer, revoke the order under this paragraph.

(2) The court may do so only if the court is satisfied that, having regard to circumstances which have arisen since the order was made, it would be in the interests of the health or welfare of the supervised person to revoke the order.

Procedural requirements on amendment or revocation of order

12.—(1) On the making under any of paragraphs 8 to 11 of an order amending or revoking a supervision and assessment order, the court must as soon as practicable give to the supervising officer at least 2 copies of the amending or revoking order.

(2) The supervising officer, when given copies under sub-paragraph (1), must give a copy of the amending or revoking order to—

(a) the supervised person, and

(b) if the supervised person is receiving in-patient treatment or is residing in a hospital, the person in charge of that hospital.

Part 5 Breach of order

13.—(1) This paragraph applies where—

(a) a supervision and assessment order is in force, and

(b) the supervising officer applies to the court that made the order for the order to be revoked under this paragraph.

(2) If—

(a) it is proved to the satisfaction of the court that the supervised person (“S”) has, without reasonable excuse, failed to comply with any of the requirements of the order, and

(b) it appears to the court to be in the interests of justice to do so,

the court may revoke the order and deal with S, for the matter in respect of which the order was made, in any manner in which the court could deal with S if a finding mentioned in section 207(1) had just been recorded by it in respect of that matter.

(3) In doing so, the court must take into account the extent to which S has complied with the requirements of the order.

(4) In proceedings under this paragraph any question as to whether S has failed to comply with the requirements of the order is to be determined by the court and not by the verdict of a jury.

(5) Where the court proposes to exercise its powers under this paragraph, it must summon S to appear before the court and, if S does not appear in answer to the summons, may issue a warrant for the arrest of S.

Part 6 Supplementary

Power to vary period for which supervision element may be made

14.—(1) The Department of Justice may make regulations substituting, for the period of 3 years mentioned in paragraph 3(1), such other period (exceeding 6 months) as may be specified in the regulations.

(2) Regulations under sub-paragraph (1) may make in paragraph 8(2) any amendment which the Department thinks necessary in consequence of the substitution made by the regulations.

Transitional provision relating to the abolition of petty sessions districts

15.—(1) Until the day on which section 1 of the Justice (Northern Ireland) Act 2015 comes into operation, this Schedule is to be read with the following modifications.

(2) If the supervising officer is a probation officer—

(a) the supervision and assessment order must specify the petty sessions district in which the supervised person resides or will reside, and

(b) the supervising officer must be a probation officer appointed for or assigned to that district.

(3) If the supervising officer is a social worker—

(a) paragraph 6(2)(b) does not apply, but

(b) the court must, as soon as practicable after making the order, give to the probation officer assigned to the court at least 1 copy of the order.

(4) After making an order, the court must send to the clerk of petty sessions for the petty sessions district in which the supervised person resides or will reside—

(a) a copy of the order; and

(b) such documents and information relating to the case as it considers likely to be of assistance to a court acting for that district in the exercise of its functions in relation to the order.

(5) The functions conferred by paragraphs 8 to 10 are to be exercised by a court for the petty sessions district in which the supervised person resides or will reside.

(6) In paragraph 9—

(a) in sub-paragraph (1)(a), the reference to supervision by a social worker includes supervision by a probation officer appointed for or assigned to a petty sessions district;

(b) the references to an HSC trust or to the area of such a trust include a petty sessions district.

(7) If the court amends a supervision and assessment order so as to substitute one petty session district for another, the court which amends the order must send to the clerk of petty sessions for the new petty sessions district—

(a) at least 2 copies of the amending order; and

(b) such documents and information relating to the case as it considers likely to be of assistance to a court acting for that district in the exercise of its functions in relation to the order.

(8) The clerk of petty sessions for the new petty sessions district, when given copies under sub-paragraph (7), must give a copy of the amending order to the supervising officer.

Section 266.

SCHEDULE 8 Amendments of Mental Health Order

1.  The Mental Health Order is amended as follows.

2.  Before Article 2 insert—

“Interpretation of Order”.

3.—(1) Article 2 (interpretation) is amended as follows.

(2) Amend paragraph (2) of that Article in accordance with sub-paragraphs (3) to (9).

(3) Insert the following at the appropriate places—

““the 2016 Act” means the Mental Capacity Act (Northern Ireland) 2016;”;

““best interests”: any determination of what would be in the best interests of a patient who is under 16 is to be made in accordance with Article 3B;”;

““independent advocate” has the same meaning as in Article 3C;”.

(4) Omit the definitions of “guardianship application”, “hospital order” and “guardianship order”, “interim hospital order”, “restriction direction”, “restriction order” and “transfer direction”.

(5) In the definition of “the applicant” omit the words from “and, in relation” to the end.

(6) In the definition of “patient” omit “(except in Part VIII)”.

(7) In the definition of “responsible authority” omit paragraph (b).

(8) In the definition of “responsible medical officer” for paragraph (b) substitute—

“(b) in relation to a patient liable to be detained under Part 10 of the 2016 Act, means the responsible medical practitioner within the meaning of that Part;”.

(9) In the definition of “the Review Tribunal” for “the Mental Health Review Tribunal for Northern Ireland” substitute “the Review Tribunal constituted under Article 70”.

(10) In paragraph (2A) of that Article—

(a) after “Articles” insert “3D,”;

(b) omit “107(1B),” and “, 123(1)”.

(11) Omit paragraph (3) of that Article.

4.  After Article 3 insert—

“General provisions about patients under 16

3A.    Best interests of patient under 16

(1) This Article applies to a person responsible for the treatment or care (or both) of a patient under 16.

(2) The person’s primary consideration, when making decisions about the patient’s treatment or care, must be the patient’s best interests.

(3) In this Article—

(a) “treatment” means any treatment relating to mental disorder;

(b) “care” means any care given where the patient is being assessed or treated for mental disorder.

(4) In this paragraph references to assessment or treatment are to any assessment or treatment, whether or not under Part 2.

3B.    Determination of a patient’s best interests

(1) This Article applies where for any purpose of this Order it falls to a person to determine what treatment or care would be in the best interests of a patient (“C”) who is under 16.

(2) In determining what would be in C’s best interests, the person must take into account C’s age but must not make the determination merely on the basis of—

(a) C’s age or appearance; or

(b) any other characteristic of C’s, including any condition that C has, which might lead others to make unjustified assumptions about what might be in C’s best interests.

(3) The person—

(a) must consider all the relevant circumstances (that is, all the circumstances of which the person is aware which it is reasonable to regard as relevant); and

(b) must in particular take the following steps.

(4) The person—

(a) must consider whether it is likely that C will, when he or she reaches the age of 16, have capacity in relation to the matter in question; and

(b) if it appears likely that C will, must consider when C will reach that age.

(5) The person must, so far as reasonably practicable—

(a) encourage and help C to participate, or to improve C’s ability to participate, as fully as possible in any decision about C’s treatment or care; and

(b) in particular, ensure that C is provided in an appropriate way with information and advice about the treatment or care.

(6) The person must have special regard to (so far as they are reasonably ascertainable)—

(a) C’s past and present wishes and feelings (and, in particular, any relevant written statement made by C); and

(b) C’s beliefs and values.

(7) The person must—

(a) so far as it is practicable and appropriate to do so, consult the relevant people about what would be in C’s best interests and in particular about the matters mentioned in paragraph (6); and

(b) take into account the views of those people (so far as ascertained from that consultation or otherwise) about what would be in C’s best interests and in particular about those matters.

For the definition of “the relevant people” see paragraph (9).

(8) The person must, in relation to anything proposed to be done, have regard to whether the same purpose can be as effectively achieved in a way that is less restrictive of C’s rights and freedoms of action.

(9) In paragraph (7) “the relevant people” means—

(a) every person who has parental responsibility for C;

(b) C’s nearest relative;

(c) if at the time of the determination there is an independent advocate instructed to represent and provide support to C, the independent advocate;

(d) any other person named by C as someone to be consulted on the matter in question or on matters of that kind;

(e) anyone engaged in caring for C or interested in C’s welfare.

3C.    Independent Advocates

(1) The Department must make regulations about independent advocates.

(2) An “independent advocate” means a person who has been appointed by an HSC trust, in accordance with the regulations, to be a person to whom the trust may from time to time offer instructions to represent and provide support to a patient who is under 16 in relation to matters specified in the instructions.

(3) The regulations may in particular—

(a) require HSC trusts to make arrangements for the purpose of ensuring that independent advocates are available to be instructed;

(b) make provision about such arrangements (including provision providing that a person may be appointed as mentioned in paragraph (2) only if the person meets prescribed conditions);

(c) make provision for the purpose of securing the independence of independent advocates;

(d) make provision in relation to the instruction of independent advocates (including provision permitting or requiring a prescribed person, in prescribed circumstances, to request an HSC trust to instruct an independent advocate);

(e) make provision about the functions of independent advocates.

(4) The conditions that may be prescribed by virtue of paragraph (3)(b) include—

(a) a condition that the person is approved, or belongs to a description of persons approved, in accordance with the regulations;

(b) a condition that the person has prescribed qualifications or skills or has undertaken prescribed training.

(5) The regulations must make provision for the purpose of securing that, except in prescribed circumstances, an independent advocate is instructed—

(a) where a patient under 16 is admitted to a hospital (whether under Part 2 or otherwise) for the assessment or treatment of mental disorder; or

(b) where it is proposed to give a patient under 16 a form of medical treatment to which Article 63 or 63B applies.

(6) The regulations may apply, or make provision corresponding to, any provision within paragraph (7) (with or without modifications).

(7) The provisions are—

(a) any provision of Part 4 of the 2016 Act;

(b) any provision of regulations made under that Part;

(c) any provision that could be made by regulations under that Part.

3D.    In-patients under 16: duties of hospital managers

(1) This Article applies in relation to a patient who—

(a) is under 16; and

(b) is an in-patient in a hospital for the purposes of the assessment or treatment of mental disorder (whether by virtue of Part 2 or otherwise).

(2) The responsible authority of the hospital must ensure that (subject to the patient’s needs) the patient’s environment in the hospital is suitable having regard to his or her age.

(3) For the purposes of deciding how to fulfil the duty under paragraph (2), the responsible authority must consult a person who appears to thatauthority to have knowledge or experience which makes that person suitable to be consulted.”.

5.  In the heading of Part 2 for “AND GUARDIANSHIP” substitute “: CHILDREN UNDER 16”.

6.—(1) Article 4 (admission for assessment) is amended as follows.

(2) In paragraph (1) after “patient” insert “who is under 16”.

(3) In paragraph (2) after “patient” insert “who is under 16”.

7.  In Article 8 (effect of application for assessment) omit paragraph (3).

8.  In Article 12 (detention for treatment) omit paragraph (3).

9.  In Article 13(1) (renewal of authority for detention) after “discharged” insert “or reached the age of 16”.

10.  After Article 14 insert—

“14A.    Liability to detention under Part 2 ends at the age of 16

(1) A patient who, immediately before his or her 16th birthday, is liable to be detained under this Part ceases to be so liable when he or she reaches the age of 16.

(2) Nothing in paragraph (1)prevents the patient from being detained by virtue of the 2016 Act”

11.  Omit Articles 18 to 26 (guardianship).

12.  In the italic heading before Article 27 omit “or guardianship”.

13.—(1) Article 27 (duty of authority to give information to patients and nearest relatives) is amended as follows.

(2) In paragraph (1) omit—

(a) each “or subject to guardianship”;

(b) in sub-paragraph (b) “or guardianship”;

(c) “or the commencement or renewal of the authority for his guardianship”.

(3) In paragraph (2) omit—

(a) each “or subject to guardianship”;

(b) in sub-paragraph (a)(i) “, 24”;

(c) “or his reception into guardianship”.

(4) In paragraph (4)—

(a) omit “or subject to guardianship”;

(b) for “the patient,” substitute “the patient and”;

(c) omit the words from “and, in” to “guardian of the patient”.

14.  In Article 28 (transfer of patients) omit—

(a) paragraphs (5) to (7);

(b) in paragraph (9) the words from “and, in” to “guardian of the patient”.

15.  In Article 29 (return and readmission of patients absent without leave) omit—

(a) paragraph (2);

(b) in paragraph (3) “or subject to guardianship, as the case may be,”.

16.—(1) Article 30 (special provisions as to patients absent without leave) is amended as follows.

(2) In paragraph (1) omit—

(a) “or subject to guardianship”;

(b) the second “or subject”.

(3) In paragraph (2)—

(a) omit “or subject to guardianship”;

(b) for “, 13 or 23” substitute “or 13”.

(4) In paragraph (3) omit “or guardianship”.

17.—(1) Article 31 is amended as follows.

(2) In paragraph (1) omit—

(a) “or subject to guardianship”;

(b) the second “or subject”.

(3) In paragraph (2) omit—

(a) each “or subject to guardianship”;

(b) the last “or subject”.

18.  In Article 32(3) (definition of “nearest relative”) omit “or his reception into guardianship”.

19.  In Article 33 (children and young persons in care) omit “who is a child or young person”.

20.—(1) Article 34 (minors under guardianship, etc) is amended as follows.

(2) In paragraph (1)—

(a) for “a person who has not attained the age of 18 years” substitute “a patient”;

(b) for “such a person” substitute “a patient”.

(3) Omit paragraph (3).

21.  In Article 35(1) (assignment of functions by nearest relative) omit “or subject to guardianship”.

22.—(1) Article 36 (appointment by county court of acting nearest relative) is amended as follows.

(2) In paragraph (1) for the words from “the applicant” to the end substitute “a person specified in the order who—

(a) is either the applicant or another person specified in the application (and is not the patient);

(b) in the opinion of the court is a proper person to act as the patient’s nearest relative; and

(c) is willing to do so.”.

(3) In paragraph (2) after “on the application of—” insert—

“(za) the patient;”.

(4) In paragraph (3)—

(a) in sub-paragraph (c) omit “or a guardianship application”;

(b) omit the word “or” after sub-paragraph (c);

(c) in sub-paragraph (d) omit “or guardianship”;

(d) after sub-paragraph (d) insert

“or

(e) that the nearest relative of the patient is otherwise not a suitable person to act as such.”.

(5) In paragraph (4) for “(3)(a) or (b)” substitute “(3)(a), (b) or (e)”.

23.—(1) Article 37 (discharge and variation of orders under Article 36) is amended as follows.

(2) In paragraph (1)—

(a) after “application made—” insert—

“(za) by the patient;”;

(b) in sub-paragraph (b) for “or (b)” substitute “, (b) or (e)”.

(3) After paragraph (1) insert—

“(1A) But in the case of an order made on the ground specified in Article 36(3)(e), an application may not be made under paragraph (1)(b) by the person who was the nearest relative of the patient when the order was made except with the leave of the county court.”.

(4) In paragraph (2)—

(a) after “or on the application of” insert “the patient or of”;

(b) for the words from “for the first-mentioned person” to the end substitute

“for the person having those functions another person (other than the patient) who—

(a) in the opinion of the court is a proper person to exercise those functions; and

(b) is willing to do so.”.

(5) In paragraph (4) omit—

(a) “or subject to guardianship”;

(b) the second, third and fourth “or subject”.

24.  In Article 39 (special provision as to wards of court) omit paragraph (3).

25.  In Article 40 (duty of approved social worker to make application for assessment or guardianship) omit—

(a) in the heading “or guardianship”;

(b) in paragraph (1) “or a guardianship application”;

(c) in paragraph (2) “or guardianship (as the case may be)”;

(d) in paragraph (5) “or Article 19(3) to (6)”.

26.  In Article 41 (applications, recommendations and reports under Part 2) omit “guardianship application,”.

27.  Omit Part 3 (patients concerned in criminal proceedings or under sentence).

28.  In the heading of Part 4, at the end insert “: CHILDREN UNDER 16”.

29.  For Article 62 substitute—

“62.    Patients to whom the provisions of this Part apply

(1) Articles 63 to 63B and, so far as relevant to those Articles, Articles 65, 66 and 68 apply to all patients who are under 16.

(2) The other provisions of this Part apply to any patient who is under 16 and is liable to be detained under this Order or Part 10 of the 2016 Act except the following—

(a) a patient who is liable to be detained by virtue of Article 7(2) or (3), 7A(2) or 129 of this Order;

(b) a patient who has been conditionally discharged under section 191 or 232 of the 2016 Act (and has not been recalled).”.

30.—(1) Article 63 (treatment requiring consent and a second opinion) is amended as follows.

(2) In paragraph (2) for the first “Article” substitute “Articles 63A and”.

(3) For paragraph (3) substitute—

“(3) Before giving a certificate under paragraph (2), the medical practitioner must consult—

(a) such person or persons as appear to the medical practitioner to be principally concerned with the patient’s medical treatment; and

(b) the independent advocate instructed to represent and provide support to the patient.”.

31.  After Article 63 insert—

“63A.    Treatment within Article 63: procedure where patient incapable of consenting

(1) Medical treatment to which Article 63 applies may be given to a patient under 16 if paragraphs (2) to (4) apply.

(2) This paragraph applies if a medical practitioner appointed for the purposes of this Part by RQIA (not being the responsible medical officer) has certified in the prescribed form—

(a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment in question; and

(b) that having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, the treatment should be given.

(3) This paragraph applies if two persons appointed for the purposes of this paragraph by RQIA (not being medical practitioners) have certified in the prescribed form that the patient is not capable of understanding the nature, purpose and likely effects of the treatment in question.

(4) This paragraph applies if—

(a) an application is made to the court for an order authorising the giving of the treatment in question to the patient;

(b) the application is made by the medical practitioner principally concerned with the patient’s medical treatment (or, if there is more than one, any of them); and

(c) the court makes an order authorising the giving of the treatment.

(5) Before giving a certificate under paragraph (2), the medical practitioner must consult—

(a) such person or persons as appear to the medical practitioner to be principally concerned with the patient’s medical treatment; and

(b) the independent advocate instructed to represent and provide support to the patient.

(6) A person appointed under paragraph (3) may at any reasonable time, for the purpose of exercising his or her functions under that paragraph, in private visit and interview any patient.

(7) A person who gives a certificate under this Article must immediately forward a copy of it to RQIA.

63B.    Electro-convulsive therapy etc

(1) This Article applies to the following forms of medical treatment for mental disorder—

(a) electro-convulsive therapy; and

(b) such other forms of treatment as may be prescribed for the purposes of this Article.

(2) Subject to Article 68 (urgent treatment), a patient must not be given any form of treatment to which this Article applies unless paragraph (3) or (4) applies.

(3) This paragraph applies if—

(a) the patient has consented to the treatment in question; and

(b) a medical practitioner appointed for the purposes of this Part by RQIA (not being the responsible medical officer) has certified in the prescribed form—

(i) that the patient is capable of understanding the nature, purpose and likely effects of the treatment in question and has consented to it; and

(ii) that having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, the treatment should be given.

(4) This paragraph applies if a medical practitioner appointed for the purposes of this Part by RQIA (not being the responsible medical officer) has certified in the prescribed form—

(a) that the patient is not capable of understanding the nature, purpose and likely effects of the treatment in question; and

(b) that having regard to the likelihood of the treatment alleviating or preventing a deterioration of the patient’s condition, the treatment should be given.

(5) Before giving a certificate under this Article, the medical practitioner must consult—

(a) such person or persons as appear to the medical practitioner to be principally concerned with the patient’s medical treatment; and

(b) the independent advocate instructed to represent and provide support to the patient.

(6) A person who gives a certificate under this Article must immediately forward a copy of it to RQIA.

(7) Before making regulations for the purposes of this Article, the Department must consult such bodies as appear to it to be concerned.”.

32.  In Article 64(1)(b) (treatment requiring consent or second opinion) after “63” insert “or 63B”.

33.  In Article 65 (plans of treatment)—

(a) for “Article 63 or 64” substitute “any of Articles 63 to 64”;

(b) for “that Article” substitute “Article 63, 63B or 64”.

34.  In Article 66(1) (withdrawal of consent) after “63” insert “, 63B”.

35.—(1) Article 67 (review of treatment) is amended as follows.

(2) In paragraph (1) after “63(2)” insert “, 63A, 63B”.

(3) In paragraph (2)—

(a) for “subject to a restriction order or restriction direction” substitute “liable to be detained by virtue of an order or direction under Part 10 of the 2016 Act”;

(b) in sub-paragraph (b) for the words from “the responsible medical officer” to the end substitute “a relevant report is made in respect of the patient.”.

(4) After that paragraph insert—

“(2A) In paragraph (2)(b) “relevant report” means a report under any of the following provisions of the 2016 Act—

(a) section 183 or paragraph 5 of Schedule 6 (reports extending public protection orders without restrictions);

(b) section 193 (reports on persons subject to public protection orders with restrictions);

(c) section 201 (reports on persons subject to hospital directions and hospital transfer directions).”.

(5) In paragraph (3)—

(a) after “63(2)” insert “, 63A, 63B”;

(b) for “63 and 64” substitute “63 to 64”.

36.—(1) Article 68 (urgent treatment) is amended as follows.

(2) In paragraph (1) for the first “and” substitute “to”.

(3) In paragraph (2) for “Article 63 or 64” substitute “any of Articles 63 to 64”;

37.  In Article 69 (treatment not requiring consent) after “63” insert “, 63B”.

38.  For the heading of Part 5 substitute—

“THE REVIEW TRIBUNAL”.

39.  In Article 70(1) (constitution of the Review Tribunal) for “Mental Health Review Tribunal for Northern Ireland” substitute “Review Tribunal”.

40.—(1) Article 71 (applications to the tribunal under Part 2) is amended as follows.

(2) Omit paragraph (2).

(3) In paragraph (3) omit the words from “or the authority” to “Article 23”.

(4) In paragraph (4) omit—

(a) sub-paragraph (b);

(b) the words “or, as the case may be, Article 24(7)”.

(5) In paragraph (5) omit “or subject to guardianship”.

41.  In Article 72(1) (reference of cases of Part 2 patients to tribunal) omit “or subject to guardianship”.

42.—(1) Article 73 (duty on Boards to refer cases to the tribunal) is amended as follows.

(2) In paragraph (1)—

(a) omit “or his guardianship”;

(b) omit “or 23”;

(c) for “2 years (or, if the patient has not attained the age of 16 years, one year)” substitute “one year”.

(3) In paragraph (3) for “periods” substitute “period”.

43.  Omit Articles 74 to 76 (applications and references concerning Part 3 patients).

44.—(1) Article 77 (power to discharge patients other than restricted patients) is amended as follows.

(2) In the heading omit “other than restricted patients”.

(3) Omit paragraph (3).

(4) In paragraph (4) for “to (3)” substitute “and (2)”.

(5) Omit paragraph (5).

45.  Omit Articles 78 to 80 (discharge of restricted patients etc).

46.  In Article 81 (visiting and examination of patients) omit “or subject to guardianship”.

47.  For Article 82 substitute—

“82.    Applications to the tribunal

(1) Applications to the Review Tribunal may be made only in such cases and at such times as are expressly provided by virtue of this Order, the 2016 Act or any other statutory provision.

(2) Where any statutory provision authorises an application to be made to the Review Tribunal within a specified period, not more than one such application relating to the same matter may be made within that period; but for this purpose any application withdrawn in accordance with rules made under Article 83 is to be disregarded.

(3) Any application to the Review Tribunal is to be made by notice in writing addressed to the tribunal (but this is subject to any statutory provision which provides otherwise).

(4) The Department of Justice may make regulations about what is, or is not, to be regarded as the same matter for the purposes of paragraph (2).

(5) Regulations under paragraph (4) may be made only if a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.”.

48.—(1) Article 83 (procedure of Tribunal) is amended as follows.

(2) In paragraph (2)(a) and (i) omit “under this Order”.

(3) In paragraph (4)—

(a) for “restricted patients” substitute “persons within paragraph (4A)”;

(b) for “restricted patient” substitute “person within paragraph (4A)”.

(4) After that paragraph insert—

“(4A) A person is within this paragraph if any of the following is in force in respect of the person—

(a) a public protection order with restrictions (within the meaning of Part 10 of the 2016 Act);

(b) a hospital direction (within the meaning of that Part of that Act);

(c) a direction under section 211 of that Act.”.

(5) In paragraph (5)—

(a) omit “by this Order or by rules under this Article”;

(b) at the end insert “(but this is subject to any rules under this Article)”.

(6) After paragraph (8) insert—

“(9) Any reference in this Article to a patient includes a person by or in respect of whom an application or reference to the Review Tribunal is made under the 2016 Act or any other statutory provision.”.

49.  Omit Article 84 (interpretation of Part 5).

50.  Omit Part 6 (functions of RQIA).

51.  In Article 90 (registration of private hospitals) omit paragraph (1).

52.  Omit Articles 91 to 94 (provisions about registration and inspections).

53.  Omit Article 96 (offences under Part 7).

54.  Omit Part 8 (management of property and affairs of patients).

55.  In Article 111(1) (code of practice)—

(a) in sub-paragraph (a) omit “and the reception of patients into guardianship”;

(b) in sub-paragraph (b) after “patients” insert “under 16”.

56.  In Article 113(1) (miscellaneous powers of the Board etc) omit sub-paragraph (c).

57.—(1) Article 116 (powers of the Board etc in relation to property of patients) is amended as follows.

(2) In paragraph (1) after the first “patient” insert “under 16”.

(3) In paragraph (5) for the words from “controller” to the end substitute “deputy (within the meaning of the 2016 Act) has the power to control and manage the patient’s property.”.

58.—(1) Article 118 (provision information by Department etc) is amended as follows.

(2) In paragraph (1)—

(a) after each “persons” insert “under 16”;

(b) omit sub-paragraph (a).

(3) In paragraph (2) for the words from “facilities” to the end substitute “facilities to the Review Tribunal as are necessary for it to exercise its functions under this Order.”.

(4) In paragraph (3) for “and RQIA as are necessary for them to exercise their” substitute “as are necessary for it to exercise its”.

59.—(1) Article 120 (unlawful detention of patients) is amended as follows.

(2) In paragraph (1) after the second “person” insert “under 16”;

(3) In paragraph (2) after “patient” insert “under the age of 16”.

(4) After paragraph (3) insert—

“(4) Nothing in this Article applies in relation to a person detained by virtue of the 2016 Act””

60.—(1) Article 121 (ill-treatment of patients) is amended as follows.

(2) In paragraph (1)—

(a) in sub-paragraph (a) after “patient” insert “who is under 16 and is”;

(b) in sub-paragraph (b) after “patient” insert “who is under 16 and is”.

(3) In paragraph (2) for the words from “for” to “otherwise” substitute “under 16 and is”.

61.  In Article 124(1)(a) (assist patients to absent themselves without leave) omit “or being subject to guardianship under this Order,”.

62.  In Article 127 (voluntary use of services) omit paragraph (2).

63.  Omit Article 128 (pay, pensions etc of patients).

64.—(1) Article 129 (warrants) is amended as follows.

(2) In paragraph (1)—

(a) after the first “person” insert “under 16”;

(b) for “a place of safety” substitute “an appropriate place”.

(3) Omit paragraph (3).

(4) In paragraph (5) for “a place of safety” substitute “an appropriate place”.

(5) In paragraph (7)—

(a) for ““place of safety”” substitute ““appropriate place””;

(b) omit “any police station,”.

65.  Omit Article 130 (mentally disordered persons found in public places).

66.  In Article 131(1) (custody, conveyance and detention) for “a place of safety or at any place to which he is taken under Article 48(5)” substitute “an appropriate place (as defined by Article 129(7))”.

67.—(1) Article 132 (retaking of patients escaping from custody) is amended as follows.

(2) In paragraph (1)(b) omit “or subject to guardianship”.

(3) In paragraph (2) omit—

(a) “or subject to guardianship”;

(b) the words from “(not being” to “such an order)”.

(4) In paragraph (3)—

(a) for “a place of safety” substitute “an appropriate place”;

(b) omit “or Article 130”.

(5) In paragraph (4) for the words from “who escapes” to the end of paragraph (b) substitute “who escapes while being taken to or from a hospital in pursuance of Article 28”.

(6) Omit paragraph (6).

68.—(1) Article 133 (protection for acts done in pursuance of Order) is amended as follows.

(2) Omit paragraph (1).

(3) In paragraph (2) for each “such act” substitute “relevant act”.

(4) After that paragraph insert—

“(2A) In paragraph (2) “relevant act” means any act purporting to be done in pursuance of this Order (or any regulations or rules made under it).”.

69.  Omit Schedule 2 (application of Part 2 to patients detained etc under Part 3).

70.  Omit Schedule 2A (supervision and treatment orders).

71.—(1) Schedule 3 (the Tribunal) is amended as follows.

(2) For the title substitute—

“THE REVIEW TRIBUNAL”.

(3) In paragraph 4(1)—

(a) after “sub-paragraph (2)” insert “and paragraph 7”;

(b) omit “under this Order”.

(4) In paragraph 5 omit “under this Order”.

(5) After paragraph 6 insert—

In any proceedings which are to be heard and determined by the Review Tribunal constituted as mentioned in paragraph 4(1) or (2)(a), the proceedings may with the consent of the parties be heard and determined in the absence of any one member other than the president, and in that event the tribunal is to be treated as properly constituted.”.

Section 283.

SCHEDULE 9 International protection of adults

Part 1 Preliminary

Introduction

1.  Paragraphs 2 to 5 apply for the purposes of this Schedule.

The Convention

2.—(1) “Convention” means the Convention on the International Protection of Adults signed at the Hague on 13th January 2000.

(2) “Convention country” means a country in which the Convention is in force.

(3) A reference to an Article or Chapter is to an Article or Chapter of the Convention.

(4) Subject to paragraph 4, an expression which appears in this Schedule and in the Convention is to be construed in accordance with the Convention.

Countries, territories and nationals

3.—(1) “Country” includes a territory which has its own system of law.

(2) Where a country has more than one territory with its own system of law, a reference to the country, in relation to one of its nationals, is to the territory with which the national has the closer, or the closest, connection.

Adults with incapacity

4.  “Adult” means a person who—

(a) as a result of an impairment or insufficiency of the person’s personal faculties, cannot protect his or her interests; and

(b) is 16 or over.

Protective measures

5.—(1) “Protective measure” means a measure directed to the protection of the person or property of an adult; and it may deal in particular with any of the following—

(a) the determination of incapacity and the institution of a protective regime;

(b) placing the adult under the protection of an appropriate authority;

(c) guardianship, curatorship or any corresponding system;

(d) the designation and functions of a person having charge of the adult’s person or property, or representing or otherwise helping the adult;

(e) placing the adult in a place where protection can be provided;

(f) administering, conserving or disposing of the adult’s property;

(g) authorising a specific intervention for the protection of the person or property of the adult.

(2) Where a measure of like effect to a protective measure has been taken in relation to a person while the person is under 16, this Schedule applies to the measure in so far as it has effect in relation to the person once the person is 16 or over.

Application of this Schedule

6.—(1) This Schedule does not apply to a relevant person where either of the following applies—

(a) the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and Measures for the Protection of Children that was signed at the Hague on 19 October 1996;

(b) Council Regulation (EC) No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility.

(2) In this paragraph “relevant person” means a person who is 16 or over but under 18.

Central Authority

7.—(1) Any function under the Convention of a Central Authority is exercisable in Northern Ireland by the Department of Justice.

(2) A communication may be sent to the Central Authority in relation to Northern Ireland by sending it to the Department of Justice.

Part 2 Jurisdiction

Scope of jurisdiction

8.—(1) The court may exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to—

(a) an adult habitually resident in Northern Ireland;

(b) an adult’s property in Northern Ireland;

(c) an adult present in Northern Ireland or who has property there, if the matter is urgent; or

(d) an adult present in Northern Ireland, if a protective measure which is temporary and limited in its effect to Northern Ireland is proposed in relation to the adult.

(2) An adult present in Northern Ireland is to be treated for the purposes of this paragraph as habitually resident there if—

(a) the habitual residence of the adult cannot be ascertained;

(b) the adult is a refugee; or

(c) the adult has been internationally displaced as a result of disturbance in the country of the adult’s habitual residence.

9.—(1) The court may also exercise its functions under this Act (in so far as it cannot otherwise do so) in relation to an adult if sub-paragraph (2) or (3) applies in relation to that adult.

(2) This sub-paragraph applies in relation to an adult if—

(a) the adult is a British citizen;

(b) the adult has a closer connection with Northern Ireland than with any other part of the United Kingdom; and

(c) Article 7 has, in relation to the matter concerned, been complied with.

(3) This sub-paragraph applies in relation to an adult if the Department of Justice, having consulted such persons as it considers appropriate, agrees to a request under Article 8 in relation to the adult.

Exercise of jurisdiction

10.—(1) This paragraph applies where jurisdiction is exercisable under this Schedule in connection with a matter which involves a Convention country other than Northern Ireland.

(2) Any Article on which the jurisdiction is based applies in relation to the matter in so far as it involves the other country (and the court must, accordingly, comply with any duty conferred on it as a result).

(3) Article 12 also applies, so far as its provisions allow, in relation to the matter in so far as it involves the other country.

11.  A reference in this Schedule to the exercise of jurisdiction under this Schedule is to the exercise of functions under this Act as a result of this Part.

Part 3 Applicable law

Applicable law

12.  In exercising jurisdiction under this Schedule, the court may, if it considers that the matter has a substantial connection with a country other than Northern Ireland and having regard to the interests of the adult, apply the law of that other country.

13.  Where a protective measure is taken in one country but implemented in another, the conditions of implementation are governed by the law of the other country.

Lasting powers of attorney, etc

14.—(1) If the donor of a lasting power is habitually resident in Northern Ireland at the time of granting the power, the law applicable to the existence, extent, modification or extinction of the power is—

(a) the law of Northern Ireland; or

(b) if the donor specifies in writing the law of a connected country for the purpose, that law.

(2) If the donor is habitually resident in another country at that time, but Northern Ireland is a connected country, the law applicable in that respect is—

(a) the law of the other country; or

(b) if the donor specifies in writing the law of Northern Ireland for the purpose, that law.

(3) A country is connected, in relation to the donor, if it is a country—

(a) of which the donor is a national;

(b) in which the donor was habitually resident before the grant of the power; or

(c) in which the donor has property.

(4) Where this paragraph applies as a result of sub-paragraph (3)(c), it applies only in relation to the property which the donor has in the connected country.

(5) The law applicable to the manner of the exercise of a lasting power is the law of the country where it is exercised.

(6) In this Part, “lasting power” means—

(a) a lasting power of attorney (see section 97);

(b) an enduring power of attorney (as defined by section 306(1)); or

(c) any other power of like effect.

15.—(1) Where a lasting power is not exercised in a manner sufficient to guarantee the protection of the person or property of the donor, the court, in exercising jurisdiction under this Schedule, may disapply or modify the power.

(2) Where, in accordance with this Part, the law applicable to the power is, in one or more respects, that of a country other than Northern Ireland, the court must, so far as possible, have regard to the law of the other country in that respect (or those respects).

16.  Regulations may provide for Schedule 4 (lasting powers of attorney: formalities) to apply with modifications in relation to a lasting power which comes within paragraph 14(6)(c).

Protection of third parties

17.—(1) This paragraph applies where a person (a “representative”) in purported exercise of an authority to act on behalf of an adult enters into a transaction with a third party.

(2) The validity of the transaction may not be questioned in proceedings, nor may the third party be held liable, merely because—

(a) where the representative and third party are in Northern Ireland when entering into the transaction, sub-paragraph (3) applies;

(b) where they are in another country at that time, sub-paragraph (4) applies.

(3) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Schedule, the law of a country other than Northern Ireland; and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under the law of that other country.

(4) This sub-paragraph applies if—

(a) the law applicable to the authority in one or more respects is, as a result of this Part, the law of Northern Ireland; and

(b) the representative is not entitled to exercise the authority in that respect (or those respects) under that law.

(5) This paragraph does not apply if the third party knew or ought to have known that the applicable law was—

(a) in a case within sub-paragraph (3), the law of the other country;

(b) in a case within sub-paragraph (4), the law of Northern Ireland.

Mandatory rules

18.  Where the court is entitled to exercise jurisdiction under this Schedule, the mandatory provisions of the law of Northern Ireland apply, regardless of any system of law which would otherwise apply in relation to the matter.

Public policy

19.  Nothing in this Part requires or enables the application in Northern Ireland of a provision of the law of another country if its application would be manifestly contrary to public policy.

Part 4 Recognition and enforcement

Recognition

20.—(1) A protective measure taken in relation to an adult under the law of a country other than Northern Ireland is to be recognised in Northern Ireland if it was taken on the ground that the adult is habitually resident in the other country.

(2) A protective measure taken in relation to an adult under the law of a Convention country other than Northern Ireland is to be recognised in Northern Ireland if it was taken on a ground mentioned in Chapter 2 (jurisdiction).

(3) But the court may disapply this paragraph in relation to a measure if it considers that—

(a) the case in which the measure was taken was not urgent;

(b) the adult was not given an opportunity to be heard; and

(c) that omission amounted to a breach of natural justice.

(4) The court may also disapply this paragraph in relation to a measure if it considers that—

(a) recognition of the measure would be manifestly contrary to public policy;

(b) the measure would be inconsistent with a mandatory provision of the law of Northern Ireland; or

(c) the measure is inconsistent with one subsequently taken, or recognised, in Northern Ireland in relation to the adult.

(5) The court may also disapply this paragraph in relation to a measure taken under the law of a Convention country in a matter to which Article 33 applies, if the court considers that that Article has not been complied with in connection with that matter.

21.—(1) An interested person may apply to the court for a declaration as to whether a protective measure taken under the law of a country other than Northern Ireland is to be recognised in Northern Ireland.

(2) No leave is required for an application to the court under this paragraph.

22.  For the purposes of paragraphs 20 and 21, any finding of fact in relation to jurisdiction relied on when the measure was taken is conclusive.

Enforcement

23.—(1) An interested person may apply to the court for a declaration as to whether a protective measure taken under the law of, and enforceable in, a country other than Northern Ireland is enforceable, or to be registered, in Northern Ireland.

(2) The court must make the declaration if—

(a) the measure comes within sub-paragraph (1) or (2) of paragraph 20; and

(b) the paragraph is not disapplied in relation to it as a result of sub-paragraph (3), (4) or (5) of that paragraph.

(3) A measure to which a declaration under this paragraph relates is enforceable in Northern Ireland as if it were a measure of like effect taken by the court.

Measures taken in relation to under 16s

24.—(1) This paragraph applies where—

(a) provision giving effect to, or otherwise deriving from, the Convention in a country other than Northern Ireland applies in relation to a person who is under 16; and

(b) a measure is taken in relation to that person in reliance on that provision.

(2) This Part applies in relation to that measure as it applies in relation to a protective measure taken in relation to an adult under the law of a Convention country other than Northern Ireland.

Supplementary

25.  The court may not review the merits of a measure taken outside Northern Ireland except to establish whether the measure complies with this Schedule in so far as it is, as a result of this Schedule, required to do so.

Part 5 Co-operation

Proposal for cross-border placement

26.—(1) This paragraph applies where a public authority proposes to place an adult in an establishment in a Convention country other than Northern Ireland.

(2) The public authority must consult an appropriate authority in that other country about the proposed placement and, for that purpose, must send it—

(a) a report on the adult; and

(b) a statement of its reasons for the proposed placement.

(3) If the appropriate authority in the other country opposes the proposed placement within a reasonable time, the public authority may not proceed with it.

27.  A proposal received by a public authority under Article 33 in relation to an adult is to proceed unless the authority opposes it within a reasonable time.

Adult in danger etc

28.—(1) This paragraph applies if a public authority is told that an adult—

(a) who is in serious danger, and

(b) in relation to whom the public authority has taken, or is considering taking, protective measures,

is, or has become resident, in a country other than Northern Ireland.

(2) The public authority must tell an appropriate authority in that other country about—

(a) the danger; and

(b) the measures taken or under consideration.

29.  A public authority may not request from, or send to, an appropriate authority in a country other than Northern Ireland information in accordance with Chapter 5 (co-operation) in relation to an adult if it considers that doing so—

(a) would be likely to endanger the adult or the adult’s property; or

(b) would amount to a serious threat to the liberty or life of a member of the adult’s family.

Part 6 General

Certificate

30.  A certificate given under Article 38 by an authority in a Convention country other than Northern Ireland is, unless the contrary is shown, proof of the matters contained in it.

Powers to make further provision as to private international law

31.—(1) Regulations may make provision—

(a) giving further effect to the Convention; or

(b) otherwise about the private international law of Northern Ireland in relation to the protection of adults.

(2) The regulations may—

(a) confer functions on the Department of Justice, the court or another public authority;

(b) amend this Schedule;

(c) provide for this Schedule to apply with specified modifications;

(d) make provision relating to countries other than Convention countries.

Exceptions

32.  Nothing in this Schedule applies, and no provision made under paragraph 31 is to apply, to any matter to which the Convention, as a result of Article 4, does not apply.

Section 303(1).

SCHEDULE 10 Consequential amendments

Judicature (Northern Ireland) Act 1978 (c. 23)

1.  In section 116(1) (fees) after “Enforcement of Judgments Office” insert “or the Public Guardian”.

2.—(1) In Schedule 1 (appeals to Supreme Court in certain criminal matters), paragraph 4 is amended as follows.

(2) In sub-paragraph (3)—

(a) for the words from “the Mental Health” to “45)” substitute “Part 10 of the Mental Capacity Act (Northern Ireland) 2016 (except an order under section 162 of that Act or an interim detention order within the meaning of Part 10 of that Act)”;

(b) for each “the said Order” substitute “that Act”;

(c) for “renewal of authority for detention” substitute “extension of the period of an order”;

(d) for “patients” substitute “persons”.

(3) In sub-paragraph (3A)—

(a) for the words from the first “interim” to “1986” substitute “interim detention order within the meaning of Part 10 of the Mental Capacity Act (Northern Ireland) 2016”;

(b) in paragraph (b)—

(i) for “Part III of that Order” substitute “Part 10 of that Act”;

(ii) for “transfer direction together with a restriction direction” substitute “direction under section 220 of that Act”;

(c) in paragraph (c) for the words from “paragraph (2)” to the end substitute “section 178(6) of that Act (power of court to make public protection order in absence of person subject to an interim detention order) applies as if the defendant were still subject to an interim detention order.”.

Criminal Appeal (Northern Ireland) Act 1980 (c. 47)

3.—(1) Section 7 (supplementary provisions as to retrial) is amended as follows.

(2) In subsection (3)—

(a) for the words from “under Part III” to “of that Order)” substitute “under Part 10 of the Mental Capacity Act (except an order under section 162 of that Act or an interim detention order)”;

(b) in paragraph (b) for “the said Part III” substitute “Part 10 of that Act”.

(3) In subsection (3A)—

(a) for the words from “remand” to “that Order” substitute “remand under section 162 of the Mental Capacity Act or an interim detention order”;

(b) for “Part III of the Mental Health Order” substitute “Part 10 of that Act”;

(c) for “transfer direction together with a restriction direction” substitute “direction under section 220 of that Act”.

4.  In section 10(5) (appeals against interim hospital orders) for “interim hospital order under Article 45 of the Mental Health Order” substitute “interim detention order”.

5.  In section 11 (appeal against conviction: substitution of finding of insanity etc) for each “Article 50A(2) of the Mental Health Order” substitute “section 207(2) of the Mental Capacity Act”.

6.  In section 12(1) (appeal against finding of not guilty on ground of insanity) for “Article 50(1) of the Mental Health Order” substitute “section 206 of the Mental Capacity Act”.

7.—(1) Section 13 (disposal of appeal allowed under section 12) is amended as follows.

(2) In subsection (5A) for “Article 50A(2) of the Mental Health Order” substitute “section 207(2) of the Mental Capacity Act”.

(3) Omit subsection (6).

8.—(1) Section 13A (appeal against finding of unfitness to be tried) is amended as follows.

(2) In subsection (1) for “Article 49 of the Mental Health Order” substitute “section 204 of the Mental Capacity Act”.

(3) In subsection (6) for “the Mental Health Order” substitute “Part 10 of the Mental Capacity Act”.

(4) In subsection (7)—

(a) for “the Mental Health Order, Part III of that Order” substitute “Part 10 of the Mental Capacity Act, that Part”;

(b) for “transfer direction together with a restriction direction” substitute “direction under section 220 of that Act”.

9.—(1) Section 29A (effect of interim hospital orders) is amended as follows.

(2) In subsection (1) for each “interim hospital order” substitute “interim detention order”.

(3) In subsection (2) for “Article 45(6) of the Mental Health Order” substitute “section 178(7) of the Mental Capacity Act”.

10.—(1) Section 30(1) (interpretation of Part 1) is amended as follows.

(2) In the definition of “sentence” at the end insert “, and any hospital direction under Part 10 of the Mental Capacity Act”.

(3) After “any such order or recommendation” insert “or direction”.

11.—(1) Section 36 (detention of defendant pending appeal by the Crown) is amended as follows.

(2) In subsection (3)—

(a) for “the Mental Health Order (otherwise than under Article 42, 43 or 45 of that Order)” substitute “Part 10 of the Mental Capacity Act (except an order under section 162 of that Act or an interim detention order)”;

(b) for the second “that Order” substitute “that Act”;

(c) for “renewal of authority for detention” substitute “extension of the period of an order”;

(d) for “patients” substitute “persons”.

(3) In subsection (3A)—

(a) for the words from “Article 43” to “Article 45 of that Order” substitute “section 162 of the Mental Capacity Act or an interim detention order”;

(b) in paragraph (b)—

(i) for “Part III of the Mental Health Order” substitute “Part 10 of that Act”;

(ii) for “transfer direction together with a restriction direction” substitute “direction under section 220 of that Act”;

(c) in paragraph (c)—

(i) for the first “interim hospital order” substitute “interim detention order”;

(ii) for the words from “paragraph (2)” to the end substitute “section 178(6) of that Act (power of court to make public protection order in absence of person subject to an interim detention order) applies as if the defendant were still subject to an interim detention order.”.

12.  In section 45(3ZA) (powers of court exercisable by single judge) for “interim hospital order” substitute “interim detention order”.

13.—(1) Section 50 (interpretation) is amended as follows.

(2) In subsection (1) insert at the appropriate places—

“interim detention order” has the meaning given by section 177 of the Mental Capacity Act;”;

““the Mental Capacity Act” means the Mental Capacity Act (Northern Ireland) 2016;”.

(3) Omit subsection (1A).

14.  Omit Schedule 2 (consequences and effect of order under section 13(6) for detention in hospital).

County Courts (Northern Ireland) Order 1980 (NI 3)

15.—(1) Article 28 (appeals and applications to county courts) is amended as follows.

(2) In paragraph (3A) for “interim hospital order under the Mental Health (Northern Ireland) Order 1986” substitute “interim detention order under Part 10 of the Mental Capacity Act (Northern Ireland) 2016”.

(3) In paragraph (3B)—

(a) for “an interim hospital order under the powers referred to in paragraph (3)” substitute “an interim detention order under Part 10 of that Act”;

(b) for “Article 45(6) of the said Order of 1986” substitute “section 178(7) of that Act”.

(4) In paragraph (4) at the end insert “(and “sentence” includes a hospital direction under Part 10 of the Mental Capacity Act (Northern Ireland) 2016)”.

Magistrates’ Courts (Northern Ireland) Order 1981 (NI 26)

16.  In Article 140 (appeals against conviction, sentence etc) after paragraph (2) insert—

“(2ZA) In paragraph (1) “sentence” also includes a hospital direction under Part 10 of the Mental Capacity Act (Northern Ireland) 2016.”.

Section 290.

SCHEDULE 11 Repeals

Short Title	Extent of Repeal
The Sale of Goods Act 1979 (c.54)	In section 3(2), the words “mental incapacity or”.
The Criminal Appeal (Northern Ireland) Act 1980 (c.47)	Section 13(6).
	Section 50(1A).
	Schedule 2.
The Mental Health (Northern Ireland) Order 1986 (NI 4)	In Article 2— (a) in paragraph (2)— (i) the definitions of “guardianship application”, “hospital order” and “guardianship order”, “interim hospital order”, “restriction direction”, “restriction order” and “transfer direction”; (ii) in the definition of “the applicant” the words from “and, in relation” to the end; (iii) in the definition of “patient” the words “(except in Part VIII)”; (iv) in the definition of “responsible authority” paragraph (b); (b) in paragraph (2A) the words “107(1B),” and “, 123(1)”; (c) paragraph (3).
	Article 8(3).
	Article 12(3).
	Articles 18 to 26.
	In the italic heading before Article 27 the words “or guardianship”.
	In Article 27— (a) in paragraph (1)— (i) the words “or subject to guardianship” in each place; (ii) in sub-paragraph (b) the words “or guardianship”; (iii) the words “or the commencement or renewal of the authority for his guardianship”; (b) in paragraph (2)— (i) the words “or subject to guardianship” in each place; (ii) in sub-paragraph (a)(i) the words “, 24”; (iii) the words “or his reception into guardianship”; (c) in paragraph (4)— (i) the words “or subject to guardianship”; (ii) the words from “and, in” to “guardian of the patient”.
	In Article 28— (a) paragraphs (5) to (7); (b) in paragraph (9) the words from “and, in” to “guardian of the patient”.
	In Article 29— (a) paragraph (2); (b) in paragraph (3) the words “or subject to guardianship, as the case may be,”.
	In Article 30— (a) in paragraph (1)— (i) the words “or subject to guardianship”; (ii) the words “or subject” in the second place where they occur; (b) in paragraph (2) the words “or subject to guardianship”; (c) in paragraph (3) the words “or guardianship”.
	In Article 31— (a) in paragraph (1)— (i) the words “or subject to guardianship”; (ii) the words “or subject” in the second place they occur; (b) in paragraph (2)— (i) the words “or subject to guardianship” in each place; (ii) the words “or subject” in the last place they occur.
	In Article 32(3) the words “or his reception into guardianship”.
	In Article 33 the words “who is a child or young person”.
	Article 34(3).
	In Article 35(1) the words “or subject to guardianship”.
	In Article 36(3)— (a) in sub-paragraph (c) the words “or a guardianship application”; (b) the word “or” after sub-paragraph (c); (c) in sub-paragraph (d) the words “or guardianship”.
	In Article 37(4)— (a) the words “or subject to guardianship”; (b) the words “or subject” in the second, third and fourth places where they occur.
	Article 39(3).
	In Article 40— (a) in the heading the words “or guardianship”; (b) in paragraph (1) the words “or a guardianship application”; (c) in paragraph (2) the words “or guardianship (as the case may be)”; (d) in paragraph (5) the words “or Article 19(3) to (6)”.
	In Article 41 the words “guardianship application,”.
	Part 3.
	In Article 71— (a) paragraph (2); (b) in paragraph (3) the words from “or the authority” to “Article 23”; (c) in paragraph (4)— (i) sub-paragraph (b); (ii) the words “or, as the case may be, Article 24(7)”; (d) in paragraph (5) the words “or subject to guardianship”.
	In Article 72(1) the words “or subject to guardianship”.
	In Article 73(1)— (a) the words “or his guardianship”; (b) the words “or 23”.
	Articles 74 to 76.
	In Article 77— (a) in the heading the words “other than restricted patients”; (b) paragraph (3); (c) paragraph (5).
	Articles 78 to 80.
	In Article 81 the words “or subject to guardianship”.
	In Article 83— (a) in paragraph (2)(a) and (i) the words “under this Order”; (b) in paragraph (5) the words “by this Order or by rules under this Article”.
	Article 84.
	Part 6.
	Article 90(1).
	Articles 91 to 94.
	Article 96.
	Part 8.
	In Article 111(1)(a) the words “and the reception of patients into guardianship”.
	Article 113(1)(c).
	Article 118(1)(a).
	In Article 124(1)(a) the words “or being subject to guardianship under this Order,”.
	Article 127(2).
	Article 128.
	In Article 129— (a) paragraph (3); (b) in paragraph (7) the words “any police station,”.
	Article 130.
	In Article 132— (a) in paragraph (1)(b) the words “or subject to guardianship”; (b) in paragraph (2)— (i) the words “or subject to guardianship”; (ii) the words from “(not being” to “such an order)”; (c) in paragraph (3) the words “or Article 130”; (d) paragraph (6).
	Article 133(1).
	Schedules 2 and 2A.
	In Schedule 3— (a) in paragraph 4(1) the words “under this Order”; (b) in paragraph 5 the words “under this Order”.