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Mental Capacity Act 2005

2005 CHAPTER 9

An Act to make new provision relating to persons who lack capacity; to establish a superior court of record called the Court of Protection in place of the office of the Supreme Court called by that name; to make provision in connection with the Convention on the International Protection of Adults signed at the Hague on 13th January 2000; and for connected purposes.

[7th April 2005]

Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part 1 E+WPersons who lack capacity

The principlesE+W

1The principlesE+W

(1)The following principles apply for the purposes of this Act.

(2)A person must be assumed to have capacity unless it is established that he lacks capacity.

(3)A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

(4)A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

(5)An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

(6)Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.

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Commencement Information

I1S. 1 wholly in force at 1.10.2007; s. 1 not in force at Royal Assent see s. 68(1)-(3); s. 1 in force for certain purposes at 1.4.2007 by S.I. 2007/563, arts. 1(2)(3), 2(2)(a)(3) and s. 1 in force otherwise at 1.10.2007 by S.I. 2007/1897, art. 2(2)(a)

PreliminaryE+W

2People who lack capacityE+W

(1)For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2)It does not matter whether the impairment or disturbance is permanent or temporary.

(3)A lack of capacity cannot be established merely by reference to—

(a)a person's age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.

(4)In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

(5)No power which a person (“D”) may exercise under this Act—

(a)in relation to a person who lacks capacity, or

(b)where D reasonably thinks that a person lacks capacity,

is exercisable in relation to a person under 16.

(6)Subsection (5) is subject to section 18(3).

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Commencement Information

I2S. 2 wholly in force at 1.10.2007; s. 2 not in force at Royal Assent see s. 68(1)-(3); s. 2 in force for certain purposes at 1.4.2007 by S.I. 2007/563, arts. 1(2)(3), 2(2)(b)(3) and s. 2 in force otherwise at 1.10.2007 by S.I. 2007/1897, art. 2(2)(b)

3Inability to make decisionsE+W

(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)to understand the information relevant to the decision,

(b)to retain that information,

(c)to use or weigh that information as part of the process of making the decision, or

(d)to communicate his decision (whether by talking, using sign language or any other means).

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)deciding one way or another, or

(b)failing to make the decision.

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Commencement Information

I3S. 3 wholly in force at 1.10.2007; s. 3 not in force at Royal Assent see s. 68(1)-(3); s. 3 in force for certain purposes at 1.4.2007 by S.I. 2007/563, arts. 1(2)(3), 2(2)(c)(3) and s. 3 in force otherwise at 1.10.2007 by S.I. 2007/1897, art. 2(2)(c)

4Best interestsE+W

(1)In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—

(a)the person's age or appearance, or

(b)a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)He must consider—

(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)if it appears likely that he will, when that is likely to be.

(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6)He must consider, so far as is reasonably ascertainable—

(a)the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

(7)He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)anyone engaged in caring for the person or interested in his welfare,

(c)any donee of a lasting power of attorney granted by the person, and

(d)any deputy appointed for the person by the court,

as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a)are exercisable under a lasting power of attorney, or

(b)are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10)Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)Relevant circumstances” are those—

(a)of which the person making the determination is aware, and

(b)which it would be reasonable to regard as relevant.

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Modifications etc. (not altering text)

Commencement Information

I4S. 4 wholly in force at 1.10.2007; s. 4 not in force at Royal Assent see s. 68(1)-(3); s. 4 in force for certain purposes at 1.4.2007 by S.I. 2007/563, arts. 1(2)(3), 2(2)(d)(3) and s. 4 in force otherwise at 1.10.2007 by S.I. 2007/1897, art. 2(2)(d)

[F14ARestriction on deprivation of libertyE+W
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Amendments (Textual)

(1)This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2)But that is subject to—

(a)the following provisions of this section, and

(b)section 4B.

(3)D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5)D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

4BDeprivation of liberty necessary for life-sustaining treatment etcE+W

(1)If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.

(2)The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.

(3)The second condition is that the deprivation of liberty—

(a)is wholly or partly for the purpose of—

(i)giving P life-sustaining treatment, or

(ii)doing any vital act, or

(b)consists wholly or partly of—

(i)giving P life-sustaining treatment, or

(ii)doing any vital act.

(4)The third condition is that the deprivation of liberty is necessary in order to—

(a)give the life-sustaining treatment, or

(b)do the vital act.

(5)A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition.]

5Acts in connection with care or treatmentE+W

(1)If a person (“D”) does an act in connection with the care or treatment of another person (“P”), the act is one to which this section applies if—

(a)before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and

(b)when doing the act, D reasonably believes—

(i)that P lacks capacity in relation to the matter, and

(ii)that it will be in P's best interests for the act to be done.

(2)D does not incur any liability in relation to the act that he would not have incurred if P—

(a)had had capacity to consent in relation to the matter, and

(b)had consented to D's doing the act.

(3)Nothing in this section excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing the act.

(4)Nothing in this section affects the operation of sections 24 to 26 (advance decisions to refuse treatment).

6Section 5 acts: limitationsE+W

(1)If D does an act that is intended to restrain P, it is not an act to which section 5 applies unless two further conditions are satisfied.

(2)The first condition is that D reasonably believes that it is necessary to do the act in order to prevent harm to P.

(3)The second is that the act is a proportionate response to—

(a)the likelihood of P's suffering harm, and

(b)the seriousness of that harm.

(4)For the purposes of this section D restrains P if he—

(a)uses, or threatens to use, force to secure the doing of an act which P resists, or

(b)restricts P's liberty of movement, whether or not P resists.

(5)F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)Section 5 does not authorise a person to do an act which conflicts with a decision made, within the scope of his authority and in accordance with this Part, by—

(a)a donee of a lasting power of attorney granted by P, or

(b)a deputy appointed for P by the court.

(7)But nothing in subsection (6) stops a person—

(a)providing life-sustaining treatment, or

(b)doing any act which he reasonably believes to be necessary to prevent a serious deterioration in P's condition,

while a decision as respects any relevant issue is sought from the court.

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Amendments (Textual)

7Payment for necessary goods and servicesE+W

(1)If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable price for them.

(2)Necessary” means suitable to a person's condition in life and to his actual requirements at the time when the goods or services are supplied.

8ExpenditureE+W

(1)If an act to which section 5 applies involves expenditure, it is lawful for D—

(a)to pledge P's credit for the purpose of the expenditure, and

(b)to apply money in P's possession for meeting the expenditure.

(2)If the expenditure is borne for P by D, it is lawful for D—

(a)to reimburse himself out of money in P's possession, or

(b)to be otherwise indemnified by P.

(3)Subsections (1) and (2) do not affect any power under which (apart from those subsections) a person—

(a)has lawful control of P's money or other property, and

(b)has power to spend money for P's benefit.

Lasting powers of attorneyE+W

9Lasting powers of attorneyE+W

(1)A lasting power of attorney is a power of attorney under which the donor (“P”) confers on the donee (or donees) authority to make decisions about all or any of the following—

(a)P's personal welfare or specified matters concerning P's personal welfare, and

(b)P's property and affairs or specified matters concerning P's property and affairs,

and which includes authority to make such decisions in circumstances where P no longer has capacity.

(2)A lasting power of attorney is not created unless—

(a)section 10 is complied with,

(b)an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with Schedule 1, and

(c)at the time when P executes the instrument, P has reached 18 and has capacity to execute it.

(3)An instrument which—

(a)purports to create a lasting power of attorney, but

(b)does not comply with this section, section 10 or Schedule 1,

confers no authority.

(4)The authority conferred by a lasting power of attorney is subject to—

(a)the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests), and

(b)any conditions or restrictions specified in the instrument.

10Appointment of doneesE+W

(1)A donee of a lasting power of attorney must be—

(a)an individual who has reached 18, or

(b)if the power relates only to P's property and affairs, either such an individual or a trust corporation.

(2)An individual who is bankrupt may not be appointed as donee of a lasting power of attorney in relation to P's property and affairs.

(3)Subsections (4) to (7) apply in relation to an instrument under which two or more persons are to act as donees of a lasting power of attorney.

(4)The instrument may appoint them to act—

(a)jointly,

(b)jointly and severally, or

(c)jointly in respect of some matters and jointly and severally in respect of others.

(5)To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be assumed to appoint them to act jointly.

(6)If they are to act jointly, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part 1 or 2 of Schedule 1 prevents a lasting power of attorney from being created.

(7)If they are to act jointly and severally, a failure, as respects one of them, to comply with the requirements of subsection (1) or (2) or Part 1 or 2 of Schedule 1—

(a)prevents the appointment taking effect in his case, but

(b)does not prevent a lasting power of attorney from being created in the case of the other or others.

(8)An instrument used to create a lasting power of attorney—

(a)cannot give the donee (or, if more than one, any of them) power to appoint a substitute or successor, but

(b)may itself appoint a person to replace the donee (or, if more than one, any of them) on the occurrence of an event mentioned in section 13(6)(a) to (d) which has the effect of terminating the donee's appointment.

11Lasting powers of attorney: restrictionsE+W

(1)A lasting power of attorney does not authorise the donee (or, if more than one, any of them) to do an act that is intended to restrain P, unless three conditions are satisfied.

(2)The first condition is that P lacks, or the donee reasonably believes that P lacks, capacity in relation to the matter in question.

(3)The second is that the donee reasonably believes that it is necessary to do the act in order to prevent harm to P.

(4)The third is that the act is a proportionate response to—

(a)the likelihood of P's suffering harm, and

(b)the seriousness of that harm.

(5)For the purposes of this section, the donee restrains P if he—

(a)uses, or threatens to use, force to secure the doing of an act which P resists, or

(b)restricts P's liberty of movement, whether or not P resists,

or if he authorises another person to do any of those things.

(6)F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Where a lasting power of attorney authorises the donee (or, if more than one, any of them) to make decisions about P's personal welfare, the authority—

(a)does not extend to making such decisions in circumstances other than those where P lacks, or the donee reasonably believes that P lacks, capacity,

(b)is subject to sections 24 to 26 (advance decisions to refuse treatment), and

(c)extends to giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P.

(8)But subsection (7)(c)—

(a)does not authorise the giving or refusing of consent to the carrying out or continuation of life-sustaining treatment, unless the instrument contains express provision to that effect, and

(b)is subject to any conditions or restrictions in the instrument.

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Amendments (Textual)

12Scope of lasting powers of attorney: giftsE+W

(1)Where a lasting power of attorney confers authority to make decisions about P's property and affairs, it does not authorise a donee (or, if more than one, any of them) to dispose of the donor's property by making gifts except to the extent permitted by subsection (2).

(2)The donee may make gifts—

(a)on customary occasions to persons (including himself) who are related to or connected with the donor, or

(b)to any charity to whom the donor made or might have been expected to make gifts,

if the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of the donor's estate.

(3)Customary occasion” means—

(a)the occasion or anniversary of a birth, a marriage or the formation of a civil partnership, or

(b)any other occasion on which presents are customarily given within families or among friends or associates.

(4)Subsection (2) is subject to any conditions or restrictions in the instrument.

13Revocation of lasting powers of attorney etc.E+W

(1)This section applies if—

(a)P has executed an instrument with a view to creating a lasting power of attorney, or

(b)a lasting power of attorney is registered as having been conferred by P,

and in this section references to revoking the power include revoking the instrument.

(2)P may, at any time when he has capacity to do so, revoke the power.

(3)P's bankruptcy revokes the power so far as it relates to P's property and affairs.

(4)But where P is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of him, the power is suspended, so far as it relates to P's property and affairs, for so long as the order has effect.

(5)The occurrence in relation to a donee of an event mentioned in subsection (6)—

(a)terminates his appointment, and

(b)except in the cases given in subsection (7), revokes the power.

(6)The events are—

(a)the disclaimer of the appointment by the donee in accordance with such requirements as may be prescribed for the purposes of this section in regulations made by the Lord Chancellor,

(b)subject to subsections (8) and (9), the death or bankruptcy of the donee or, if the donee is a trust corporation, its winding-up or dissolution,

(c)subject to subsection (11), the dissolution or annulment of a marriage or civil partnership between the donor and the donee,

(d)the lack of capacity of the donee.

(7)The cases are—

(a)the donee is replaced under the terms of the instrument,

(b)he is one of two or more persons appointed to act as donees jointly and severally in respect of any matter and, after the event, there is at least one remaining donee.

(8)The bankruptcy of a donee does not terminate his appointment, or revoke the power, in so far as his authority relates to P's personal welfare.

(9)Where the donee is bankrupt merely because an interim bankruptcy restrictions order has effect in respect of him, his appointment and the power are suspended, so far as they relate to P's property and affairs, for so long as the order has effect.

(10)Where the donee is one of two or more appointed to act jointly and severally under the power in respect of any matter, the reference in subsection (9) to the suspension of the power is to its suspension in so far as it relates to that donee.

(11)The dissolution or annulment of a marriage or civil partnership does not terminate the appointment of a donee, or revoke the power, if the instrument provided that it was not to do so.

14Protection of donee and others if no power created or power revokedE+W

(1)Subsections (2) and (3) apply if—

(a)an instrument has been registered under Schedule 1 as a lasting power of attorney, but

(b)a lasting power of attorney was not created,

whether or not the registration has been cancelled at the time of the act or transaction in question.

(2)A donee who acts in purported exercise of the power does not incur any liability (to P or any other person) because of the non-existence of the power unless at the time of acting he—

(a)knows that a lasting power of attorney was not created, or

(b)is aware of circumstances which, if a lasting power of attorney had been created, would have terminated his authority to act as a donee.

(3)Any transaction between the donee and another person is, in favour of that person, as valid as if the power had been in existence, unless at the time of the transaction that person has knowledge of a matter referred to in subsection (2).

(4)If the interest of a purchaser depends on whether a transaction between the donee and the other person was valid by virtue of subsection (3), it is conclusively presumed in favour of the purchaser that the transaction was valid if—

(a)the transaction was completed within 12 months of the date on which the instrument was registered, or

(b)the other person makes a statutory declaration, before or within 3 months after the completion of the purchase, that he had no reason at the time of the transaction to doubt that the donee had authority to dispose of the property which was the subject of the transaction.

(5)In its application to a lasting power of attorney which relates to matters in addition to P's property and affairs, section 5 of the Powers of Attorney Act 1971 (c. 27) (protection where power is revoked) has effect as if references to revocation included the cessation of the power in relation to P's property and affairs.

(6)Where two or more donees are appointed under a lasting power of attorney, this section applies as if references to the donee were to all or any of them.

General powers of the court and appointment of deputiesE+W

15Power to make declarationsE+W

(1)The court may make declarations as to—

(a)whether a person has or lacks capacity to make a decision specified in the declaration;

(b)whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;

(c)the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.

(2)Act” includes an omission and a course of conduct.

16Powers to make decisions and appoint deputies: generalE+W

(1)This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning—

(a)P's personal welfare, or

(b)P's property and affairs.

(2)The court may—

(a)by making an order, make the decision or decisions on P's behalf in relation to the matter or matters, or

(b)appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters.

(3)The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1 (the principles) and 4 (best interests).

(4)When deciding whether it is in P's best interests to appoint a deputy, the court must have regard (in addition to the matters mentioned in section 4) to the principles that—

(a)a decision by the court is to be preferred to the appointment of a deputy to make a decision, and

(b)the powers conferred on a deputy should be as limited in scope and duration as is reasonably practicable in the circumstances.

(5)The court may make such further orders or give such directions, and confer on a deputy such powers or impose on him such duties, as it thinks necessary or expedient for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

(6)Without prejudice to section 4, the court may make the order, give the directions or make the appointment on such terms as it considers are in P's best interests, even though no application is before the court for an order, directions or an appointment on those terms.

(7)An order of the court may be varied or discharged by a subsequent order.

(8)The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on him if it is satisfied that the deputy—

(a)has behaved, or is behaving, in a way that contravenes the authority conferred on him by the court or is not in P's best interests, or

(b)proposes to behave in a way that would contravene that authority or would not be in P's best interests.

[F416ASection 16 powers: Mental Health Act patients etcE+W
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Amendments (Textual)

(1)If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.

(2)If—

(a)a welfare order includes provision which authorises a person to be deprived of his liberty, and

(b)that person becomes ineligible to be deprived of liberty by this Act,

the provision ceases to have effect for as long as the person remains ineligible.

(3)Nothing in subsection (2) affects the power of the court under section 16(7) to vary or discharge the welfare order.

(4)For the purposes of this section—

(a)Schedule 1A applies for determining whether or not P is ineligible to be deprived of liberty by this Act;

(b)welfare order” means an order under section 16(2)(a).]

17Section 16 powers: personal welfareE+W

(1)The powers under section 16 as respects P's personal welfare extend in particular to—

(a)deciding where P is to live;

(b)deciding what contact, if any, P is to have with any specified persons;

(c)making an order prohibiting a named person from having contact with P;

(d)giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;

(e)giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.

(2)Subsection (1) is subject to section 20 (restrictions on deputies).

18Section 16 powers: property and affairsE+W

(1)The powers under section 16 as respects P's property and affairs extend in particular to—

(a)the control and management of P's property;

(b)the sale, exchange, charging, gift or other disposition of P's property;

(c)the acquisition of property in P's name or on P's behalf;

(d)the carrying on, on P's behalf, of any profession, trade or business;

(e)the taking of a decision which will have the effect of dissolving a partnership of which P is a member;

(f)the carrying out of any contract entered into by P;

(g)the discharge of P's debts and of any of P's obligations, whether legally enforceable or not;

(h)the settlement of any of P's property, whether for P's benefit or for the benefit of others;

(i)the execution for P of a will;

(j)the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;

(k)the conduct of legal proceedings in P's name or on P's behalf.

(2)No will may be made under subsection (1)(i) at a time when P has not reached 18.

(3)The powers under section 16 as respects any other matter relating to P's property and affairs may be exercised even though P has not reached 16, if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when he reaches 18.

(4)Schedule 2 supplements the provisions of this section.

(5)Section 16(7) (variation and discharge of court orders) is subject to paragraph 6 of Schedule 2.

(6)Subsection (1) is subject to section 20 (restrictions on deputies).

19Appointment of deputiesE+W

(1)A deputy appointed by the court must be—

(a)an individual who has reached 18, or

(b)as respects powers in relation to property and affairs, an individual who has reached 18 or a trust corporation.

(2)The court may appoint an individual by appointing the holder for the time being of a specified office or position.

(3)A person may not be appointed as a deputy without his consent.

(4)The court may appoint two or more deputies to act—

(a)jointly,

(b)jointly and severally, or

(c)jointly in respect of some matters and jointly and severally in respect of others.

(5)When appointing a deputy or deputies, the court may at the same time appoint one or more other persons to succeed the existing deputy or those deputies—

(a)in such circumstances, or on the happening of such events, as may be specified by the court;

(b)for such period as may be so specified.

(6)A deputy is to be treated as P's agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part.

(7)The deputy is entitled—

(a)to be reimbursed out of P's property for his reasonable expenses in discharging his functions, and

(b)if the court so directs when appointing him, to remuneration out of P's property for discharging them.

(8)The court may confer on a deputy powers to—

(a)take possession or control of all or any specified part of P's property;

(b)exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.

(9)The court may require a deputy—

(a)to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions, and

(b)to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.

20Restrictions on deputiesE+W

(1)A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter.

(2)Nothing in section 16(5) or 17 permits a deputy to be given power—

(a)to prohibit a named person from having contact with P;

(b)to direct a person responsible for P's health care to allow a different person to take over that responsibility.

(3)A deputy may not be given powers with respect to—

(a)the settlement of any of P's property, whether for P's benefit or for the benefit of others,

(b)the execution for P of a will, or

(c)the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise.

(4)A deputy may not be given power to make a decision on behalf of P which is inconsistent with a decision made, within the scope of his authority and in accordance with this Act, by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them).

(5)A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P.

(6)The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests).

(7)A deputy may not do an act that is intended to restrain P unless four conditions are satisfied.

(8)The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court.

(9)The second is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question.

(10)The third is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P.

(11)The fourth is that the act is a proportionate response to—

(a)the likelihood of P's suffering harm, [F5andF5]

(b)the seriousness of that harm.

(12)For the purposes of this section, a deputy restrains P if he—

(a)uses, or threatens to use, force to secure the doing of an act which P resists, or

(b)restricts P's liberty of movement, whether or not P resists,

or if he authorises another person to do any of those things.

(13)F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Amendments (Textual)

21Transfer of proceedings relating to people under 18E+W

[F7(1)F7]The [F8Lord Chief Justice, with the concurrence of the Lord Chancellor,]F8 may by order make provision as to the transfer of proceedings relating to a person under 18, in such circumstances as are specified in the order—

(a)from the Court of Protection to a court having jurisdiction under the Children Act 1989 (c. 41), or

(b)from a court having jurisdiction under that Act to the Court of Protection.

[F9(2)The Lord Chief Justice may nominate any of the following to exercise his functions under this section—

(a)the President of the Court of Protection;

(b)a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).F9]

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Amendments (Textual)

[F10Powers of the court in relation to Schedule A1E+W

21APowers of court in relation to Schedule A1E+W

(1)This section applies if either of the following has been given under Schedule A1—

(a)a standard authorisation;

(b)an urgent authorisation.

(2)Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—

(a)whether the relevant person meets one or more of the qualifying requirements;

(b)the period during which the standard authorisation is to be in force;

(c)the purpose for which the standard authorisation is given;

(d)the conditions subject to which the standard authorisation is given.

(3)If the court determines any question under subsection (2), the court may make an order—

(a)varying or terminating the standard authorisation, or

(b)directing the supervisory body to vary or terminate the standard authorisation.

(4)Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters—

(a)whether the urgent authorisation should have been given;

(b)the period during which the urgent authorisation is to be in force;

(c)the purpose for which the urgent authorisation is given.

(5)Where the court determines any question under subsection (4), the court may make an order—

(a)varying or terminating the urgent authorisation, or

(b)directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.

(6)Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

(7)An order under subsection (6) may, in particular, exclude a person from liability.]

Powers of the court in relation to lasting powers of attorneyE+W

22Powers of court in relation to validity of lasting powers of attorneyE+W

(1)This section and section 23 apply if —

(a)a person (“P”) has executed or purported to execute an instrument with a view to creating a lasting power of attorney, or

(b)an instrument has been registered as a lasting power of attorney conferred by P.

(2)The court may determine any question relating to—

(a)whether one or more of the requirements for the creation of a lasting power of attorney have been met;

(b)whether the power has been revoked or has otherwise come to an end.

(3)Subsection (4) applies if the court is satisfied—

(a)that fraud or undue pressure was used to induce P—

(i)to execute an instrument for the purpose of creating a lasting power of attorney, or

(ii)to create a lasting power of attorney, or

(b)that the donee (or, if more than one, any of them) of a lasting power of attorney—

(i)has behaved, or is behaving, in a way that contravenes his authority or is not in P's best interests, or

(ii)proposes to behave in a way that would contravene his authority or would not be in P's best interests.

(4)The court may—

(a)direct that an instrument purporting to create the lasting power of attorney is not to be registered, or

(b)if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.

(5)If there is more than one donee, the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them.

(6)Donee” includes an intended donee.

23Powers of court in relation to operation of lasting powers of attorneyE+W

(1)The court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.

(2)The court may—

(a)give directions with respect to decisions—

(i)which the donee of a lasting power of attorney has authority to make, and

(ii)which P lacks capacity to make;

(b)give any consent or authorisation to act which the donee would have to obtain from P if P had capacity to give it.

(3)The court may, if P lacks capacity to do so—

(a)give directions to the donee with respect to the rendering by him of reports or accounts and the production of records kept by him for that purpose;

(b)require the donee to supply information or produce documents or things in his possession as donee;

(c)give directions with respect to the remuneration or expenses of the donee;

(d)relieve the donee wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as donee.

(4)The court may authorise the making of gifts which are not within section 12(2) (permitted gifts).

(5)Where two or more donees are appointed under a lasting power of attorney, this section applies as if references to the donee were to all or any of them.

Advance decisions to refuse treatmentE+W

24Advance decisions to refuse treatment: generalE+W

(1)Advance decision” means a decision made by a person (“P”), after he has reached 18 and when he has capacity to do so, that if—

(a)at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and

(b)at that time he lacks capacity to consent to the carrying out or continuation of the treatment,

the specified treatment is not to be carried out or continued.

(2)For the purposes of subsection (1)(a), a decision may be regarded as specifying a treatment or circumstances even though expressed in layman's terms.

(3)P may withdraw or alter an advance decision at any time when he has capacity to do so.

(4)A withdrawal (including a partial withdrawal) need not be in writing.

(5)An alteration of an advance decision need not be in writing (unless section 25(5) applies in relation to the decision resulting from the alteration).

25Validity and applicability of advance decisionsE+W

(1)An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to P unless the decision is at the material time—

(a)valid, and

(b)applicable to the treatment.

(2)An advance decision is not valid if P—

(a)has withdrawn the decision at a time when he had capacity to do so,

(b)has, under a lasting power of attorney created after the advance decision was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision relates, or

(c)has done anything else clearly inconsistent with the advance decision remaining his fixed decision.

(3)An advance decision is not applicable to the treatment in question if at the material time P has capacity to give or refuse consent to it.

(4)An advance decision is not applicable to the treatment in question if—

(a)that treatment is not the treatment specified in the advance decision,

(b)any circumstances specified in the advance decision are absent, or

(c)there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated them.

(5)An advance decision is not applicable to life-sustaining treatment unless—

(a)the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and

(b)the decision and statement comply with subsection (6).

(6)A decision or statement complies with this subsection only if—

(a)it is in writing,

(b)it is signed by P or by another person in P's presence and by P's direction,

(c)the signature is made or acknowledged by P in the presence of a witness, and

(d)the witness signs it, or acknowledges his signature, in P's presence.

(7)The existence of any lasting power of attorney other than one of a description mentioned in subsection (2)(b) does not prevent the advance decision from being regarded as valid and applicable.

26Effect of advance decisionsE+W

(1)If P has made an advance decision which is—

(a)valid, and

(b)applicable to a treatment,

the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.

(2)A person does not incur liability for carrying out or continuing the treatment unless, at the time, he is satisfied that an advance decision exists which is valid and applicable to the treatment.

(3)A person does not incur liability for the consequences of withholding or withdrawing a treatment from P if, at the time, he reasonably believes that an advance decision exists which is valid and applicable to the treatment.

(4)The court may make a declaration as to whether an advance decision—

(a)exists;

(b)is valid;

(c)is applicable to a treatment.

(5)Nothing in an apparent advance decision stops a person—

(a)providing life-sustaining treatment, or

(b)doing any act he reasonably believes to be necessary to prevent a serious deterioration in P's condition,

while a decision as respects any relevant issue is sought from the court.

Excluded decisionsE+W

27Family relationships etc.E+W

(1)Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—

(a)consenting to marriage or a civil partnership,

(b)consenting to have sexual relations,

(c)consenting to a decree of divorce being granted on the basis of two years' separation,

(d)consenting to a dissolution order being made in relation to a civil partnership on the basis of two years' separation,

(e)consenting to a child's being placed for adoption by an adoption agency,

(f)consenting to the making of an adoption order,

(g)discharging parental responsibilities in matters not relating to a child's property,

(h)giving a consent under the Human Fertilisation and Embryology Act 1990 (c. 37).

[F11(i)giving a consent under the Human Fertilisation and Embryology Act 2008.]

F11(2)Adoption order” means—

(a)an adoption order within the meaning of the Adoption and Children Act 2002 (c. 38) (including a future adoption order), and

(b)an order under section 84 of that Act (parental responsibility prior to adoption abroad).

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Amendments (Textual)

28Mental Health Act mattersE+W

(1)Nothing in this Act authorises anyone—

(a)to give a patient medical treatment for mental disorder, or

(b)to consent to a patient's being given medical treatment for mental disorder,

if, at the time when it is proposed to treat the patient, his treatment is regulated by Part 4 of the Mental Health Act.

[F12(1A)Subsection (1) does not apply in relation to any form of treatment to which section 58A of that Act (electro-convulsive therapy, etc.) applies if the patient comes within subsection (7) of that section (informal patient under 18 who cannot give consent).]

[F13F12(1B)Section 5 does not apply to an act to which section 64B of the Mental Health Act applies (treatment of community patients not recalled to hospital).]

F13(2)Medical treatment”, “mental disorder” and “patient” have the same meaning as in that Act.

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Amendments (Textual)

29Voting rightsE+W

(1)Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person.

(2)Referendum” has the same meaning as in section 101 of the Political Parties, Elections and Referendums Act 2000 (c. 41).

ResearchE+W

30ResearchE+W

(1)Intrusive research carried out on, or in relation to, a person who lacks capacity to consent to it is unlawful unless it is carried out—

(a)as part of a research project which is for the time being approved by the appropriate body for the purposes of this Act in accordance with section 31, and

(b)in accordance with sections 32 and 33.

(2)Research is intrusive if it is of a kind that would be unlawful if it was carried out—

(a)on or in relation to a person who had capacity to consent to it, but

(b)without his consent.

(3)A clinical trial which is subject to the provisions of clinical trials regulations is not to be treated as research for the purposes of this section.

[F14(3A)Research is not intrusive to the extent that it consists of the use of a person's human cells to bring about the creation in vitro of an embryo or human admixed embryo, or the subsequent storage or use of an embryo or human admixed embryo so created.

(3B)Expressions used in subsection (3A) and in Schedule 3 to the Human Fertilisation and Embryology Act 1990 (consents to use or storage of gametes, embryos or human admixed embryos etc.) have the same meaning in that subsection as in that Schedule.]

F14(4)Appropriate body”, in relation to a research project, means the person, committee or other body specified in regulations made by the appropriate authority as the appropriate body in relation to a project of the kind in question.

(5)Clinical trials regulations” means—

(a)the Medicines for Human Use (Clinical Trials) Regulations 2004 (S.I. 2004/1031) and any other regulations replacing those regulations or amending them, and

(b)any other regulations relating to clinical trials and designated by the Secretary of State as clinical trials regulations for the purposes of this section.

(6)In this section, section 32 and section 34, “appropriate authority” means—

(a)in relation to the carrying out of research in England, the Secretary of State, and

(b)in relation to the carrying out of research in Wales, the National Assembly for Wales.

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Amendments (Textual)

Commencement Information

I5S. 30 wholly in force at 1.10.2008; s. 30 not in force at Royal Assent see s. 68(1)-(3); s. 30 in force for certain purposes at 1.7.2007 and 1.10.2007 and in force at 1.10.2008 in so far as not already in force by S.I. 2006/2814, arts. 2, 3, 4 (as amended by S.I. 2006/3473, art. 2); S.I. 2007/856, arts. 2, 3, 4

31Requirements for approvalE+W

(1)The appropriate body may not approve a research project for the purposes of this Act unless satisfied that the following requirements will be met in relation to research carried out as part of the project on, or in relation to, a person who lacks capacity to consent to taking part in the project (“P”).

(2)The research must be connected with—

(a)an impairing condition affecting P, or

(b)its treatment.

(3)Impairing condition” means a condition which is (or may be) attributable to, or which causes or contributes to (or may cause or contribute to), the impairment of, or disturbance in the functioning of, the mind or brain.

(4)There must be reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent to taking part in it.

(5)The research must—

(a)have the potential to benefit P without imposing on P a burden that is disproportionate to the potential benefit to P, or

(b)be intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition.

(6)If the research falls within paragraph (b) of subsection (5) but not within paragraph (a), there must be reasonable grounds for believing—

(a)that the risk to P from taking part in the project is likely to be negligible, and

(b)that anything done to, or in relation to, P will not—

(i)interfere with P's freedom of action or privacy in a significant way, or

(ii)be unduly invasive or restrictive.

(7)There must be reasonable arrangements in place for ensuring that the requirements of sections 32 and 33 will be met.

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Commencement Information

I6S. 31 wholly in force at 1.10.2008; s. 31 not in force at Royal Assent see s. 68(1)-(3); s. 31 in force for certain purposes at 1.7.2007 and 1.10.2007 and in force at 1.10.2008 in so far as not already in force by S.I. 2006/2814, arts. 2, 3, 4 (as amended by S.I. 2006/3473, art. 2); S.I. 2007/856, arts. 2, 3, 4

32Consulting carers etc.E+W

(1)This section applies if a person (“R”)—

(a)is conducting an approved research project, and

(b)wishes to carry out research, as part of the project, on or in relation to a person (“P”) who lacks capacity to consent to taking part in the project.

(2)R must take reasonable steps to identify a person who—

(a)otherwise than in a professional capacity or for remuneration, is engaged in caring for P or is interested in P's welfare, and

(b)is prepared to be consulted by R under this section.

(3)If R is unable to identify such a person he must, in accordance with guidance issued by the appropriate authority, nominate a person who—

(a)is prepared to be consulted by R under this section, but

(b)has no connection with the project.

(4)R must provide the person identified under subsection (2), or nominated under subsection (3), with information about the project and ask him—

(a)for advice as to whether P should take part in the project, and

(b)what, in his opinion, P's wishes and feelings about taking part in the project would be likely to be if P had capacity in relation to the matter.

(5)If, at any time, the person consulted advises R that in his opinion P's wishes and feelings would be likely to lead him to decline to take part in the project (or to wish to withdraw from it) if he had capacity in relation to the matter, R must ensure—

(a)if P is not already taking part in the project, that he does not take part in it;

(b)if P is taking part in the project, that he is withdrawn from it.

(6)But subsection (5)(b) does not require treatment that P has been receiving as part of the project to be discontinued if R has reasonable grounds for believing that there would be a significant risk to P's health if it were discontinued.

(7)The fact that a person is the donee of a lasting power of attorney given by P, or is P's deputy, does not prevent him from being the person consulted under this section.

(8)Subsection (9) applies if treatment is being, or is about to be, provided for P as a matter of urgency and R considers that, having regard to the nature of the research and of the particular circumstances of the case—

(a)it is also necessary to take action for the purposes of the research as a matter of urgency, but

(b)it is not reasonably practicable to consult under the previous provisions of this section.

(9)R may take the action if—

(a)he has the agreement of a registered medical practitioner who is not involved in the organisation or conduct of the research project, or

(b)where it is not reasonably practicable in the time available to obtain that agreement, he acts in accordance with a procedure approved by the appropriate body at the time when the research project was approved under section 31.

(10)But R may not continue to act in reliance on subsection (9) if he has reasonable grounds for believing that it is no longer necessary to take the action as a matter of urgency.

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Commencement Information

I7S. 32 wholly in force at 1.10.2008; s. 32 not in force at Royal Assent see s. 68(1)-(3); s. 32 in force for certain purposes at 1.7.2007 and 1.10.2007 and in force at 1.10.2008 in so far as not already in force by S.I. 2006/2814, arts. 2, 3, 4 (as amended by S.I. 2006/3473, art. 2); S.I. 2007/856, arts. 2, 3, 4

33Additional safeguardsE+W

(1)This section applies in relation to a person who is taking part in an approved research project even though he lacks capacity to consent to taking part.

(2)Nothing may be done to, or in relation to, him in the course of the research—

(a)to which he appears to object (whether by showing signs of resistance or otherwise) except where what is being done is intended to protect him from harm or to reduce or prevent pain or discomfort, or

(b)which would be contrary to—

(i)an advance decision of his which has effect, or

(ii)any other form of statement made by him and not subsequently withdrawn,

of which R is aware.

(3)The interests of the person must be assumed to outweigh those of science and society.

(4)If he indicates (in any way) that he wishes to be withdrawn from the project he must be withdrawn without delay.

(5)P must be withdrawn from the project, without delay, if at any time the person conducting the research has reasonable grounds for believing that one or more of the requirements set out in section 31(2) to (7) is no longer met in relation to research being carried out on, or in relation to, P.

(6)But neither subsection (4) nor subsection (5) requires treatment that P has been receiving as part of the project to be discontinued if R has reasonable grounds for believing that there would be a significant risk to P's health if it were discontinued.

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Commencement Information

I8S. 33 wholly in force at 1.10.2008; s. 33 not in force at Royal Assent see s. 68(1)-(3); s. 33 in force for certain purposes at 1.7.2007 and 1.10.2007 and in force at 1.10.2008 in so far as not already in force by S.I. 2006/2814, arts. 2, 3, 4 (as amended by S.I. 2006/3473, art. 2); S.I. 2007/856, arts. 2, 3, 4

34Loss of capacity during research projectE+W

(1)This section applies where a person (“P”)—

(a)has consented to take part in a research project begun before the commencement of section 30, but

(b)before the conclusion of the project, loses capacity to consent to continue to take part in it.

(2)The appropriate authority may by regulations provide that, despite P's loss of capacity, research of a prescribed kind may be carried out on, or in relation to, P if—

(a)the project satisfies prescribed requirements,

(b)any information or material relating to P which is used in the research is of a prescribed description and was obtained before P's loss of capacity, and

(c)the person conducting the project takes in relation to P such steps as may be prescribed for the purpose of protecting him.

(3)The regulations may, in particular,—

(a)make provision about when, for the purposes of the regulations, a project is to be treated as having begun;

(b)include provision similar to any made by section 31, 32 or 33.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I9S. 34 wholly in force at 1.10.2008; s. 34 not in force at Royal Assent see s. 68(1)-(3); s. 34 in force for certain purposes at 1.7.2007 and 1.10.2007 and in force at 1.10.2008 in so far as not already in force by S.I. 2006/2814, arts. 2, 3, 4 (as amended by S.I. 2006/3473, art. 2); S.I. 2007/856, arts. 2, 3, 4

Independent mental capacity advocate serviceE+W

35Appointment of independent mental capacity advocatesE+W

(1)The appropriate authority must make such arrangements as it considers reasonable to enable persons (“independent mental capacity advocates”) to be available to represent and support persons to whom acts or decisions proposed under sections 37, 38 and 39 relate [F15or persons who fall within section 39A, 39C or 39D]F15.

(2)The appropriate authority may make regulations as to the appointment of independent mental capacity advocates.

(3)The regulations may, in particular, provide—

(a)that a person may act as an independent mental capacity advocate only in such circumstances, or only subject to such conditions, as may be prescribed;

(b)for the appointment of a person as an independent mental capacity advocate to be subject to approval in accordance with the regulations.

(4)In making arrangements under subsection (1), the appropriate authority must have regard to the principle that a person to whom a proposed act or decision relates should, so far as practicable, be represented and supported by a person who is independent of any person who will be responsible for the act or decision.

(5)The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

(6)For the purpose of enabling him to carry out his functions, an independent mental capacity advocate—

(a)may interview in private the person whom he has been instructed to represent, and

(b)may, at all reasonable times, examine and take copies of—

(i)any health record,

(ii)any record of, or held by, a local authority and compiled in connection with a social services function, and

(iii)any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) [F16or Chapter 2 of Part 1 of the Health and Social Care Act 2008]F16,

which the person holding the record considers may be relevant to the independent mental capacity advocate's investigation.

(7)In this section, section 36 and section 37, “the appropriate authority” means—

(a)in relation to the provision of the services of independent mental capacity advocates in England, the Secretary of State, and

(b)in relation to the provision of the services of independent mental capacity advocates in Wales, the National Assembly for Wales.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Modifications etc. (not altering text)

Commencement Information

I10S. 35 wholly in force at 1.10.2007; s. 35 not in force at Royal Assent see s. 68(1)-(3); s. 35 in force for E. at 1.11.2006 for certain purposes and otherwise 1.4.2007 by S.I. 2006/2814, art. 5; s. 35 in force at 1.10.2007 for W. by S.I. 2007/856, art. 5

36Functions of independent mental capacity advocatesE+W

(1)The appropriate authority may make regulations as to the functions of independent mental capacity advocates.

(2)The regulations may, in particular, make provision requiring an advocate to take such steps as may be prescribed for the purpose of—

(a)providing support to the person whom he has been instructed to represent (“P”) so that P may participate as fully as possible in any relevant decision;

(b)obtaining and evaluating relevant information;

(c)ascertaining what P's wishes and feelings would be likely to be, and the beliefs and values that would be likely to influence P, if he had capacity;

(d)ascertaining what alternative courses of action are available in relation to P;

(e)obtaining a further medical opinion where treatment is proposed and the advocate thinks that one should be obtained.

(3)The regulations may also make provision as to circumstances in which the advocate may challenge, or provide assistance for the purpose of challenging, any relevant decision.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I11S. 36 wholly in force at 1.10.2007; s. 36 not in force at Royal Assent see s. 68(1)-(3); s. 36 in force for E. at 1.11.2006 for certain purposes and otherwise 1.4.2007 by S.I. 2006/2814, art. 5; s. 36 in force at 1.10.2007 for W. by S.I. 2007/856, art. 5

37Provision of serious medical treatment by NHS bodyE+W

(1)This section applies if an NHS body—

(a)is proposing to provide, or secure the provision of, serious medical treatment for a person (“P”) who lacks capacity to consent to the treatment, and

(b)is satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.

(2)But this section does not apply if P's treatment is regulated by Part 4 [F17or 4A]F17 of the Mental Health Act.

(3)Before the treatment is provided, the NHS body must instruct an independent mental capacity advocate to represent P.

(4)If the treatment needs to be provided as a matter of urgency, it may be provided even though the NHS body has not been able to comply with subsection (3).

(5)The NHS body must, in providing or securing the provision of treatment for P, take into account any information given, or submissions made, by the independent mental capacity advocate.

(6)Serious medical treatment” means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority.

(7)NHS body” has such meaning as may be prescribed by regulations made for the purposes of this section by—

(a)the Secretary of State, in relation to bodies in England, or

(b)the National Assembly for Wales, in relation to bodies in Wales.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Commencement Information

I12S. 37 wholly in force at 1.10.2007; s. 37 not in force at Royal Assent see s. 68(1)-(3); s. 37 in force for E. at 1.11.2006 for certain purposes and otherwise 1.4.2007 by S.I. 2006/2814, art. 5; s. 37 in force at 1.10.2007 for W. by S.I. 2007/856, art. 5

38Provision of accommodation by NHS bodyE+W

(1)This section applies if an NHS body proposes to make arrangements—

(a)for the provision of accommodation in a hospital or care home for a person (“P”) who lacks capacity to agree to the arrangements, or

(b)for a change in P's accommodation to another hospital or care home,

and is satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for it to consult in determining what would be in P's best interests.

(2)But this section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.

[F18(2A)And this section does not apply if—

(a)an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the NHS body) to represent P, and

(b)the hospital or care home in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section.]

F18(3)Before making the arrangements, the NHS body must instruct an independent mental capacity advocate to represent P unless it is satisfied that—

(a)the accommodation is likely to be provided for a continuous period which is less than the applicable period, or

(b)the arrangements need to be made as a matter of urgency.

(4)If the NHS body—

(a)did not instruct an independent mental capacity advocate to represent P before making the arrangements because it was satisfied that subsection (3)(a) or (b) applied, but

(b)subsequently has reason to believe that the accommodation is likely to be provided for a continuous period—

(i)beginning with the day on which accommodation was first provided in accordance with the arrangements, and

(ii)ending on or after the expiry of the applicable period,

it must instruct an independent mental capacity advocate to represent P.

(5)The NHS body must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate.

(6)Care home” has the meaning given in section 3 of the Care Standards Act 2000 (c. 14).

[F19(7)Hospital” means—

(a)in relation to England, a hospital as defined by section 275 of the National Health Service Act 2006; and

(b)in relation to Wales, a health service hospital as defined by section 206 of the National Health Service (Wales) Act 2006 or an independent hospital as defined by section 2 of the Care Standards Act 2000.]

F19(8)NHS body” has such meaning as may be prescribed by regulations made for the purposes of this section by—

(a)the Secretary of State, in relation to bodies in England, or

(b)the National Assembly for Wales, in relation to bodies in Wales.

(9)Applicable period” means—

(a)in relation to accommodation in a hospital, 28 days, and

(b)in relation to accommodation in a care home, 8 weeks.

[F20(10)For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.F20]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Commencement Information

I13S. 38 wholly in force at 1.10.2007; s. 38 not in force at Royal Assent see s. 68(1)-(3); s. 38 in force for E. at 1.11.2006 for certain purposes and otherwise 1.4.2007 by S.I. 2006/2814, art. 5; s. 38 in force at 1.10.2007 for W. by S.I. 2007/856, art. 5

39Provision of accommodation by local authorityE+W

(1)This section applies if a local authority propose to make arrangements—

(a)for the provision of residential accommodation for a person (“P”) who lacks capacity to agree to the arrangements, or

(b)for a change in P's residential accommodation,

and are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for them to consult in determining what would be in P's best interests.

(2)But this section applies only if the accommodation is to be provided in accordance with—

(a)section 21 or 29 of the National Assistance Act 1948 (c. 29), or

(b)section 117 of the Mental Health Act,

as the result of a decision taken by the local authority under section 47 of the National Health Service and Community Care Act 1990 (c. 19).

(3)This section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.

[F21(3A)And this section does not apply if—

(a)an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the local authority) to represent P, and

(b)the place in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section.]

F21(4)Before making the arrangements, the local authority must instruct an independent mental capacity advocate to represent P unless they are satisfied that—

(a)the accommodation is likely to be provided for a continuous period of less than 8 weeks, or

(b)the arrangements need to be made as a matter of urgency.

(5)If the local authority—

(a)did not instruct an independent mental capacity advocate to represent P before making the arrangements because they were satisfied that subsection (4)(a) or (b) applied, but

(b)subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements,

they must instruct an independent mental capacity advocate to represent P.

(6)The local authority must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate.

[F22(7)For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.F22]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Commencement Information

I14S. 39 wholly in force at 1.10.2007; s. 39 not in force at Royal Assent see s. 68(1)-(3); s. 39 in force for E. at 1.11.2006 for certain purposes and otherwise 1.4.2007 by S.I. 2006/2814, art. 5; s. 39 in force at 1.10.2007 for W. by S.I. 2007/856, art. 5

[F2339APerson becomes subject to Schedule A1E+W
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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

(1)This section applies if—

(a)a person (“P”) becomes subject to Schedule A1, and

(b)the managing authority of the relevant hospital or care home are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.

(2)The managing authority must notify the supervisory body that this section applies.

(3)The supervisory body must instruct an independent mental capacity advocate to represent P.

(4)Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.

(5)This section is subject to paragraph 161 of Schedule A1.

(6)For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.

39BSection 39A: supplementary provisionE+W

(1)This section applies for the purposes of section 39A.

(2)P becomes subject to Schedule A1 in any of the following cases.

(3)The first case is where an urgent authorisation is given in relation to P under paragraph 76(2) of Schedule A1 (urgent authorisation given before request made for standard authorisation).

(4)The second case is where the following conditions are met.

(5)The first condition is that a request is made under Schedule A1 for a standard authorisation to be given in relation to P (“the requested authorisation”).

(6)The second condition is that no urgent authorisation was given under paragraph 76(2) of Schedule A1 before that request was made.

(7)The third condition is that the requested authorisation will not be in force on or before, or immediately after, the expiry of an existing standard authorisation.

(8)The expiry of a standard authorisation is the date when the authorisation is expected to cease to be in force.

(9)The third case is where, under paragraph 69 of Schedule A1, the supervisory body select a person to carry out an assessment of whether or not the relevant person is a detained resident.

39CPerson unrepresented whilst subject to Schedule A1E+W

(1)This section applies if—

(a)an authorisation under Schedule A1 is in force in relation to a person (“P”),

(b)the appointment of a person as P's representative ends in accordance with regulations made under Part 10 of Schedule A1, and

(c)the managing authority of the relevant hospital or care home are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.

(2)The managing authority must notify the supervisory body that this section applies.

(3)The supervisory body must instruct an independent mental capacity advocate to represent P.

(4)Paragraph 159 of Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.

(5)The appointment of an independent mental capacity advocate under this section ends when a new appointment of a person as P's representative is made in accordance with Part 10 of Schedule A1.

(6)For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.

39DPerson subject to Schedule A1 without paid representativeE+W

(1)This section applies if—

(a)an authorisation under Schedule A1 is in force in relation to a person (“P”),

(b)P has a representative (“R”) appointed under Part 10 of Schedule A1, and

(c)R is not being paid under regulations under Part 10 of Schedule A1 for acting as P's representative.

(2)The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases.

(3)The first case is where P makes a request to the supervisory body to instruct an advocate.

(4)The second case is where R makes a request to the supervisory body to instruct an advocate.

(5)The third case is where the supervisory body have reason to believe one or more of the following—

(a)that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;

(b)that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(c)that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it.

(6)The duty in subsection (2) is subject to section 39E.

(7)If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters—

(a)the effect of the authorisation;

(b)the purpose of the authorisation;

(c)the duration of the authorisation;

(d)any conditions to which the authorisation is subject;

(e)the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, decided that P met the qualifying requirement in question;

(f)the relevant rights;

(g)how to exercise the relevant rights.

(8)The advocate is, in particular, to take such steps as are practicable to help P or R—

(a)to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or

(b)to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.

(9)If the advocate helps P or R to exercise the right of review—

(a)the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable;

(b)the advocate may give information, or make submissions, to any assessor carrying out a review assessment.

(10)In this section—

  • relevant rights” means—

    (a)

    the right to apply to court, and

    (b)

    the right of review;

  • right to apply to court” means the right to make an application to the court to exercise its jurisdiction under section 21A;

  • right of review” means the right under Part 8 of Schedule A1 to request a review.

39ELimitation on duty to instruct advocate under section 39DE+W

(1)This section applies if an advocate is already representing P in accordance with an instruction under section 39D.

(2)Section 39D(2) does not require another advocate to be instructed, unless the following conditions are met.

(3)The first condition is that the existing advocate was instructed—

(a)because of a request by R, or

(b)because the supervisory body had reason to believe one or more of the things in section 39D(5).

(4)The second condition is that the other advocate would be instructed because of a request by P.]

[F2440ExceptionsE+W
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Amendments (Textual)

[F25(1)F25]The duty imposed by section 37(3), 38(3) or (4) [F26, 39(4) or (5), 39A(3), 39C(3) or 39D(2)]F26 does not apply where there is—

(a)a person nominated by P (in whatever manner) as a person to be consulted on matters to which that duty relates,

(b)a donee of a lasting power of attorney created by P who is authorised to make decisions in relation to those matters, or

(c)a deputy appointed by the court for P with power to make decisions in relation to those matters.

[F27(2)A person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, a person nominated by P as a person to be consulted in matters to which a duty mentioned in subsection (1) relates.F27F24]]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

F25S. 40 renumbered as s. 40(1) (1.4.2009) by virtue of The Mental Health Act 2007 (c. 12), ss. 50, 56, Sch. 9 para. 7(2); S.I. 2009/139, art. 2(e) (with art. 3)

Commencement Information

I15S. 40 wholly in force at 1.10.2007; s. 40 not in force at Royal Assent see s. 68(1)-(3); s. 40 in force for E. at 1.11.2006 for certain purposes and otherwise 1.4.2007 by S.I. 2006/2814, art. 5; s. 40 in force at 1.10.2007 for W. by S.I. 2007/856, art. 5

41Power to adjust role of independent mental capacity advocateE+W

(1)The appropriate authority may make regulations—

(a)expanding the role of independent mental capacity advocates in relation to persons who lack capacity, and

(b)adjusting the obligation to make arrangements imposed by section 35.

(2)The regulations may, in particular—

(a)prescribe circumstances (different to those set out in sections 37, 38 and 39) in which an independent mental capacity advocate must, or circumstances in which one may, be instructed by a person of a prescribed description to represent a person who lacks capacity, and

(b)include provision similar to any made by section 37, 38, 39 or 40.

(3)Appropriate authority” has the same meaning as in section 35.

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Commencement Information

I16S. 41 wholly in force at 1.10.2007; s. 41 not in force at Royal Assent see s. 68(1)-(3); s. 41 in force for E. at 1.11.2006 for certain purposes and otherwise 1.4.2007 by S.I. 2006/2814, art. 5; s. 41 in force at 1.10.2007 for W. by S.I. 2007/856, art. 5

Miscellaneous and supplementaryE+W

42Codes of practiceE+W

(1)The Lord Chancellor must prepare and issue one or more codes of practice—

(a)for the guidance of persons assessing whether a person has capacity in relation to any matter,

(b)for the guidance of persons acting in connection with the care or treatment of another person (see section 5),

(c)for the guidance of donees of lasting powers of attorney,

(d)for the guidance of deputies appointed by the court,

(e)for the guidance of persons carrying out research in reliance on any provision made by or under this Act (and otherwise with respect to sections 30 to 34),

(f)for the guidance of independent mental capacity advocates,

[F28(fa)for the guidance of persons exercising functions under Schedule A1,

(fb)for the guidance of representatives appointed under Part 10 of Schedule A1,]

F28(g)with respect to the provisions of sections 24 to 26 (advance decisions and apparent advance decisions), and

(h)with respect to such other matters concerned with this Act as he thinks fit.

(2)The Lord Chancellor may from time to time revise a code.

(3)The Lord Chancellor may delegate the preparation or revision of the whole or any part of a code so far as he considers expedient.

(4)It is the duty of a person to have regard to any relevant code if he is acting in relation to a person who lacks capacity and is doing so in one or more of the following ways—

(a)as the donee of a lasting power of attorney,

(b)as a deputy appointed by the court,

(c)as a person carrying out research in reliance on any provision made by or under this Act (see sections 30 to 34),

(d)as an independent mental capacity advocate,

[F29(da)in the exercise of functions under Schedule A1,

(db)as a representative appointed under Part 10 of Schedule A1,]

F29(e)in a professional capacity,

(f)for remuneration.

(5)If it appears to a court or tribunal conducting any criminal or civil proceedings that—

(a)a provision of a code, or

(b)a failure to comply with a code,

is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.

(6)A code under subsection (1)(d) may contain separate guidance for deputies appointed by virtue of paragraph 1(2) of Schedule 5 (functions of deputy conferred on receiver appointed under the Mental Health Act).

(7)In this section and in section 43, “code” means a code prepared or revised under this section.

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Amendments (Textual)

Commencement Information

I17S. 42 wholly in force at 1.10.2007; s. 42 not in force at Royal Assent see s. 68(1)-(3); s. 42(1)(2)(3)(6)(7) in force for E.W. and s. 42(4)(5) in force for certain purposes for E. at 1.4.2007 by S.I. 2007/563, arts. 1(2)(3), 2(2)(e)(3); s. 42(4)(5) in force for all purposes at 1.10.2007 by S.I. 2007/1897, art. 2(2)(e)

43Codes of practice: procedureE+W

(1)Before preparing or revising a code, the Lord Chancellor must consult—

(a)the National Assembly for Wales, and

(b)such other persons as he considers appropriate.

(2)The Lord Chancellor may not issue a code unless—

(a)a draft of the code has been laid by him before both Houses of Parliament, and

(b)the 40 day period has elapsed without either House resolving not to approve the draft.

(3)The Lord Chancellor must arrange for any code that he has issued to be published in such a way as he considers appropriate for bringing it to the attention of persons likely to be concerned with its provisions.

(4)40 day period”, in relation to the draft of a proposed code, means—

(a)if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later of the two days;

(b)in any other case, the period of 40 days beginning with the day on which it is laid before each House.

(5)In calculating the period of 40 days, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.

44Ill-treatment or neglectE+W

(1)Subsection (2) applies if a person (“D”)—

(a)has the care of a person (“P”) who lacks, or whom D reasonably believes to lack, capacity,

(b)is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or

(c)is a deputy appointed by the court for P.

(2)D is guilty of an offence if he ill-treats or wilfully neglects P.

(3)A person guilty of an offence under this section is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.

Part 2 E+WThe Court of Protection and the Public Guardian

The Court of ProtectionE+W

45The Court of ProtectionE+W

(1)There is to be a superior court of record known as the Court of Protection.

(2)The court is to have an official seal.

(3)The court may sit at any place in England and Wales, on any day and at any time.

(4)The court is to have a central office and registry at a place appointed by the Lord Chancellor [F30, after consulting the Lord Chief Justice]F30.

(5)The Lord Chancellor may [F31, after consulting the Lord Chief Justice,]F31 designate as additional registries of the court any district registry of the High Court and any county court office.

[F32(5A)The Lord Chief Justice may nominate any of the following to exercise his functions under this section—

(a)the President of the Court of Protection;

(b)a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).]

F32(6)The office of the Supreme Court called the Court of Protection ceases to exist.

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Amendments (Textual)

46The judges of the Court of ProtectionE+W

(1)Subject to Court of Protection Rules under section 51(2)(d), the jurisdiction of the court is exercisable by a judge nominated for that purpose by—

(a)the [F33Lord Chief Justice]F33, or

[F34(b)where nominated by the Lord Chief Justice to act on his behalf under this subsection—

(i)the President of the Court of Protection; or

(ii)a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).]

F34(2)To be nominated, a judge must be—

(a)the President of the Family Division,

(b)the Vice-Chancellor,

(c)a puisne judge of the High Court,

(d)a circuit judge, or

(e)a district judge.

(3)The [F35Lord Chief Justice, after consulting the Lord Chancellor,]F35 must—

(a)appoint one of the judges nominated by virtue of subsection (2)(a) to (c) to be President of the Court of Protection, and

(b)appoint another of those judges to be Vice-President of the Court of Protection.

(4)The [F36Lord Chief Justice, after consulting the Lord Chancellor,]F36 must appoint one of the judges nominated by virtue of subsection (2)(d) or (e) to be Senior Judge of the Court of Protection, having such administrative functions in relation to the court as the Lord Chancellor [F37, after consulting the Lord Chief Justice,]F37 may direct.

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Amendments (Textual)

Supplementary powersE+W

47General powers and effect of orders etc.E+W

(1)The court has in connection with its jurisdiction the same powers, rights, privileges and authority as the High Court.

(2)Section 204 of the Law of Property Act 1925 (c. 20) (orders of High Court conclusive in favour of purchasers) applies in relation to orders and directions of the court as it applies to orders of the High Court.

(3)Office copies of orders made, directions given or other instruments issued by the court and sealed with its official seal are admissible in all legal proceedings as evidence of the originals without any further proof.

48Interim orders and directionsE+W

The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—

(a)there is reason to believe that P lacks capacity in relation to the matter,

(b)the matter is one to which its powers under this Act extend, and

(c)it is in P's best interests to make the order, or give the directions, without delay.

49Power to call for reportsE+W

(1)This section applies where, in proceedings brought in respect of a person (“P”) under Part 1, the court is considering a question relating to P.

(2)The court may require a report to be made to it by the Public Guardian or by a Court of Protection Visitor.

(3)The court may require a local authority, or an NHS body, to arrange for a report to be made—

(a)by one of its officers or employees, or

(b)by such other person (other than the Public Guardian or a Court of Protection Visitor) as the authority, or the NHS body, considers appropriate.

(4)The report must deal with such matters relating to P as the court may direct.

(5)Court of Protection Rules may specify matters which, unless the court directs otherwise, must also be dealt with in the report.

(6)The report may be made in writing or orally, as the court may direct.

(7)In complying with a requirement, the Public Guardian or a Court of Protection Visitor may, at all reasonable times, examine and take copies of—

(a)any health record,

(b)any record of, or held by, a local authority and compiled in connection with a social services function, and

(c)any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) [F38or Chapter 2 of Part 1 of the Health and Social Care Act 2008]F38,

so far as the record relates to P.

(8)If the Public Guardian or a Court of Protection Visitor is making a visit in the course of complying with a requirement, he may interview P in private.

(9)If a Court of Protection Visitor who is a Special Visitor is making a visit in the course of complying with a requirement, he may if the court so directs carry out in private a medical, psychiatric or psychological examination of P's capacity and condition.

(10)NHS body” has the meaning given in section 148 of the Health and Social Care (Community Health and Standards) Act 2003 (c. 43).

(11)Requirement” means a requirement imposed under subsection (2) or (3).

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Amendments (Textual)

Practice and procedureE+W

50Applications to the Court of ProtectionE+W

(1)No permission is required for an application to the court for the exercise of any of its powers under this Act—

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

(b)if such a person has not reached 18, by anyone with parental responsibility for him,

(c)by the donor or a donee of a lasting power of attorney to which the application relates,

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

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

[F39(1A)Nor is permission required for an application to the court under section 21A by the relevant person's representative.]

F39(2)But, subject to Court of Protection Rules and to paragraph 20(2) of Schedule 3 (declarations relating to private international law), permission is required for any other application to the court.

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

(a)the applicant's connection with the person to whom the application relates,

(b)the reasons for the application,

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

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

(4)Parental responsibility” has the same meaning as in the Children Act 1989 (c. 41).

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Amendments (Textual)

51Court of Protection RulesE+W

[F40(1)Rules of court with respect to the practice and procedure of the court (to be called “Court of Protection Rules”) may be made in accordance with Part 1 of Schedule 1 to the Constitutional Reform Act 2005.]

F40(2)Court of Protection Rules may, in particular, make provision—

(a)as to the manner and form in which proceedings are to be commenced;

(b)as to the persons entitled to be notified of, and be made parties to, the proceedings;

(c)for the allocation, in such circumstances as may be specified, of any specified description of proceedings to a specified judge or to specified descriptions of judges;

(d)for the exercise of the jurisdiction of the court, in such circumstances as may be specified, by its officers or other staff;

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

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

(g)for enabling the court to proceed with, or with any part of, a hearing in the absence of the person to whom the proceedings relate;

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

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

(j)for the enforcement of orders made and directions given in the proceedings.

(3)Court of Protection Rules may, instead of providing for any matter, refer to provision made or to be made about that matter by directions.

(4)Court of Protection Rules may make different provision for different areas.

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Amendments (Textual)

[F4152Practice directionsE+W
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Amendments (Textual)

(1)Directions as to the practice and procedure of the court may be given in accordance with Part 1 of Schedule 2 to the Constitutional Reform Act 2005.

(2)Practice directions given otherwise than under subsection (1) may not be given without the approval of—

(a)the Lord Chancellor, and

(b)the Lord Chief Justice.

(3)The Lord Chief Justice may nominate any of the following to exercise his functions under this section—

(a)the President of the Court of Protection;

(b)a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).F41]

53Rights of appealE+W

(1)Subject to the provisions of this section, an appeal lies to the Court of Appeal from any decision of the court.

(2)Court of Protection Rules may provide that where a decision of the court is made by—

(a)a person exercising the jurisdiction of the court by virtue of rules made under section 51(2)(d),

(b)a district judge, or

(c)a circuit judge,

an appeal from that decision lies to a prescribed higher judge of the court and not to the Court of Appeal.

(3)For the purposes of this section the higher judges of the court are—

(a)in relation to a person mentioned in subsection (2)(a), a circuit judge or a district judge;

(b)in relation to a person mentioned in subsection (2)(b), a circuit judge;

(c)in relation to any person mentioned in subsection (2), one of the judges nominated by virtue of section 46(2)(a) to (c).

(4)Court of Protection Rules may make provision—

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

(b)as to the person or persons entitled to grant permission to appeal;

(c)as to any requirements to be satisfied before permission is granted;

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

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

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

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

Fees and costsE+W

54FeesE+W

(1)The Lord Chancellor may with the consent of the Treasury by order prescribe fees payable in respect of anything dealt with by the court.

(2)An order under this section may in particular contain provision as to—

(a)scales or rates of fees;

(b)exemptions from and reductions in fees;

(c)remission of fees in whole or in part.

(3)Before making an order under this section, the Lord Chancellor must consult—

(a)the President of the Court of Protection,

(b)the Vice-President of the Court of Protection, and

(c)the Senior Judge of the Court of Protection.

(4)The Lord Chancellor must take such steps as are reasonably practicable to bring information about fees to the attention of persons likely to have to pay them.

(5)Fees payable under this section are recoverable summarily as a civil debt.

55CostsE+W

(1)Subject to Court of Protection Rules, the costs of and incidental to all proceedings in the court are in its discretion.

(2)The rules may in particular make provision for regulating matters relating to the costs of those proceedings, including prescribing scales of costs to be paid to legal or other representatives.

(3)The court has full power to determine by whom and to what extent the costs are to be paid.

(4)The court may, in any proceedings—

(a)disallow, or

(b)order the legal or other representatives concerned to meet,

the whole of any wasted costs or such part of them as may be determined in accordance with the rules.

(5)Legal or other representative”, in relation to a party to proceedings, means any person exercising a right of audience or right to conduct litigation on his behalf.

(6)Wasted costs” means any costs incurred by a party—

(a)as a result of any improper, unreasonable or negligent act or omission on the part of any legal or other representative or any employee of such a representative, or

(b)which, in the light of any such act or omission occurring after they were incurred, the court considers it is unreasonable to expect that party to pay.

56Fees and costs: supplementaryE+W

(1)Court of Protection Rules may make provision—

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

(b)for charging fees and costs upon the estate of the person to whom the proceedings relate;

(c)for the payment of fees and costs within a specified time of the death of the person to whom the proceedings relate or the conclusion of the proceedings.

(2)A charge on the estate of a person created by virtue of subsection (1)(b) does not cause any interest of the person in any property to fail or determine or to be prevented from recommencing.

The Public GuardianE+W

57The Public GuardianE+W

(1)For the purposes of this Act, there is to be an officer, to be known as the Public Guardian.

(2)The Public Guardian is to be appointed by the Lord Chancellor.

(3)There is to be paid to the Public Guardian out of money provided by Parliament such salary as the Lord Chancellor may determine.

(4)The Lord Chancellor may, after consulting the Public Guardian—

(a)provide him with such officers and staff, or

(b)enter into such contracts with other persons for the provision (by them or their sub-contractors) of officers, staff or services,

as the Lord Chancellor thinks necessary for the proper discharge of the Public Guardian's functions.

(5)Any functions of the Public Guardian may, to the extent authorised by him, be performed by any of his officers.

58Functions of the Public GuardianE+W

(1)The Public Guardian has the following functions—

(a)establishing and maintaining a register of lasting powers of attorney,

(b)establishing and maintaining a register of orders appointing deputies,

(c)supervising deputies appointed by the court,

(d)directing a Court of Protection Visitor to visit—

(i)a donee of a lasting power of attorney,

(ii)a deputy appointed by the court, or

(iii)the person granting the power of attorney or for whom the deputy is appointed (“P”),

and to make a report to the Public Guardian on such matters as he may direct,

(e)receiving security which the court requires a person to give for the discharge of his functions,

(f)receiving reports from donees of lasting powers of attorney and deputies appointed by the court,

(g)reporting to the court on such matters relating to proceedings under this Act as the court requires,

(h)dealing with representations (including complaints) about the way in which a donee of a lasting power of attorney or a deputy appointed by the court is exercising his powers,

(i)publishing, in any manner the Public Guardian thinks appropriate, any information he thinks appropriate about the discharge of his functions.

(2)The functions conferred by subsection (1)(c) and (h) may be discharged in co-operation with any other person who has functions in relation to the care or treatment of P.

(3)The Lord Chancellor may by regulations make provision—

(a)conferring on the Public Guardian other functions in connection with this Act;

(b)in connection with the discharge by the Public Guardian of his functions.

(4)Regulations made under subsection (3)(b) may in particular make provision as to—

(a)the giving of security by deputies appointed by the court and the enforcement and discharge of security so given;

(b)the fees which may be charged by the Public Guardian;

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

(d)exemptions from and reductions in such fees;

(e)remission of such fees in whole or in part;

(f)the making of reports to the Public Guardian by deputies appointed by the court and others who are directed by the court to carry out any transaction for a person who lacks capacity.

(5)For the purpose of enabling him to carry out his functions, the Public Guardian may, at all reasonable times, examine and take copies of—

(a)any health record,

(b)any record of, or held by, a local authority and compiled in connection with a social services function, and

(c)any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) [F42or Chapter 2 of Part 1 of the Health and Social Care Act 2008]F42,

so far as the record relates to P.

(6)The Public Guardian may also for that purpose interview P in private.

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Amendments (Textual)

59Public Guardian BoardE+W

(1)There is to be a body, to be known as the Public Guardian Board.

(2)The Board's duty is to scrutinise and review the way in which the Public Guardian discharges his functions and to make such recommendations to the Lord Chancellor about that matter as it thinks appropriate.

(3)The Lord Chancellor must, in discharging his functions under sections 57 and 58, give due consideration to recommendations made by the Board.

(4)F43. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5)The Board must have—

(a)at least one member who is a judge of the court, and

(b)at least four members who are persons appearing to the Lord Chancellor to have appropriate knowledge or experience of the work of the Public Guardian.

[F44(5A)Where a person to be appointed as a member of the Board is a judge of the court, the appointment is to be made by the Lord Chief Justice after consulting the Lord Chancellor.

(5B)In any other case, the appointment of a person as a member of the Board is to be made by the Lord Chancellor.]

F44(6)The Lord Chancellor may by regulations make provision as to—

(a)the appointment of members of the Board (and, in particular, the procedures to be followed in connection with appointments);

(b)the selection of one of the members to be the chairman;

(c)the term of office of the chairman and members;

(d)their resignation, suspension or removal;

(e)the procedure of the Board (including quorum);

(f)the validation of proceedings in the event of a vacancy among the members or a defect in the appointment of a member.

(7)Subject to any provision made in reliance on subsection (6)(c) or (d), a person is to hold and vacate office as a member of the Board in accordance with the terms of the instrument appointing him.

(8)The Lord Chancellor may make such payments to or in respect of members of the Board by way of reimbursement of expenses, allowances and remuneration as he may determine.

(9)The Board must make an annual report to the Lord Chancellor about the discharge of its functions.

[F45(10)The Lord Chief Justice may nominate any of the following to exercise his functions under this section—

(a)the President of the Court of Protection;

(b)a judicial office holder (as defined in section 109(4) of the Constitutional Reform Act 2005).F45]

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Amendments (Textual)

60Annual reportE+W

(1)The Public Guardian must make an annual report to the Lord Chancellor about the discharge of his functions.

(2)The Lord Chancellor must, within one month of receiving the report, lay a copy of it before Parliament.

Court of Protection VisitorsE+W

61Court of Protection VisitorsE+W

(1)A Court of Protection Visitor is a person who is appointed by the Lord Chancellor to—

(a)a panel of Special Visitors, or

(b)a panel of General Visitors.

(2)A person is not qualified to be a Special Visitor unless he—

(a)is a registered medical practitioner or appears to the Lord Chancellor to have other suitable qualifications or training, and

(b)appears to the Lord Chancellor to have special knowledge of and experience in cases of impairment of or disturbance in the functioning of the mind or brain.

(3)A General Visitor need not have a medical qualification.

(4)A Court of Protection Visitor—

(a)may be appointed for such term and subject to such conditions, and

(b)may be paid such remuneration and allowances,

as the Lord Chancellor may determine.

(5)For the purpose of carrying out his functions under this Act in relation to a person who lacks capacity (“P”), a Court of Protection Visitor may, at all reasonable times, examine and take copies of—

(a)any health record,

(b)any record of, or held by, a local authority and compiled in connection with a social services function, and

(c)any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14) [F46or Chapter 2 of Part 1 of the Health and Social Care Act 2008]F46,

so far as the record relates to P.

(6)A Court of Protection Visitor may also for that purpose interview P in private.

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Amendments (Textual)

Part 3 E+WMiscellaneous and general

Declaratory provisionE+W

62Scope of the ActE+W

For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).

Private international lawE+W

63International protection of adultsE+W

Schedule 3—

(a)gives effect in England and Wales to the Convention on the International Protection of Adults signed at the Hague on 13th January 2000 (Cm. 5881) (in so far as this Act does not otherwise do so), and

(b)makes related provision as to the private international law of England and Wales.

GeneralE+W

64 InterpretationE+W

(1)In this Act—

  • the 1985 Act” means the Enduring Powers of Attorney Act 1985 (c. 29),

  • advance decision” has the meaning given in section 24(1),

  • [F47authorisation under Schedule A1”means either—

    (a)

    a standard authorisation under that Schedule, or

    (b)

    an urgent authorisation under that Schedule.]

  • F47the court” means the Court of Protection established by section 45,

  • Court of Protection Rules” has the meaning given in section 51(1),

  • Court of Protection Visitor” has the meaning given in section 61,

  • deputy” has the meaning given in section 16(2)(b),

  • enactment” includes a provision of subordinate legislation (within the meaning of the Interpretation Act 1978 (c. 30)),

  • health record” has the meaning given in section 68 of the Data Protection Act 1998 (c. 29) (as read with section 69 of that Act),

  • the Human Rights Convention” has the same meaning as “the Convention” in the Human Rights Act 1998 (c. 42),

  • independent mental capacity advocate” has the meaning given in section 35(1),

  • lasting power of attorney” has the meaning given in section 9,

  • life-sustaining treatment” has the meaning given in section 4(10),

  • local authority[F48, except in Schedule A1,]F48 means—

    (a)

    the council of a county in England in which there are no district councils,

    (b)

    the council of a district in England,

    (c)

    the council of a county or county borough in Wales,

    (d)

    the council of a London borough,

    (e)

    the Common Council of the City of London, or

    (f)

    the Council of the Isles of Scilly,

  • Mental Health Act” means the Mental Health Act 1983 (c. 20),

  • prescribed”, in relation to regulations made under this Act, means prescribed by those regulations,

  • property” includes any thing in action and any interest in real or personal property,

  • public authority” has the same meaning as in the Human Rights Act 1998,

  • Public Guardian” has the meaning given in section 57,

  • purchaser” and “purchase” have the meaning given in section 205(1) of the Law of Property Act 1925 (c. 20),

  • social services function” has the meaning given in section 1A of the Local Authority Social Services Act 1970 (c. 42),

  • treatment” includes a diagnostic or other procedure,

  • trust corporation” has the meaning given in section 68(1) of the Trustee Act 1925 (c. 19), and

  • will” includes codicil.

(2)In this Act, references to making decisions, in relation to a donee of a lasting power of attorney or a deputy appointed by the court, include, where appropriate, acting on decisions made.

(3)In this Act, references to the bankruptcy of an individual include a case where a bankruptcy restrictions order under the Insolvency Act 1986 (c. 45) has effect in respect of him.

(4)Bankruptcy restrictions order” includes an interim bankruptcy restrictions order.

[F49(5)In this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention.

(6)For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.F49]

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Amendments (Textual)

F47S. 64(1): definition of "authorisation under Schedule A1" inserted (1.4.2008) by Mental Health Act 2007 (c. 12), ss. 50, 56, Sch. 9 para. 10(2); S.I. 2008/745, art. 4(b)

Commencement Information

I18S. 64 wholly in force at 1.10.2007; s. 64 not in force at Royal Assent see s. 68(1)-(3); s. 64 in force for certain purposes at 1.4.2007 by S.I. 2007/563, art. 2(4); and s. 64 in force for all purposes at 1.10.2007 by S.I. 2007/1897, art. 2(2)(f)

65Rules, regulations and ordersE+W

(1)Any power to make rules, regulations or orders under this Act [F50, other than the power in section 21]F50

(a)is exercisable by statutory instrument;

(b)includes power to make supplementary, incidental, consequential, transitional or saving provision;

(c)includes power to make different provision for different cases.

(2)Any statutory instrument containing rules, regulations or orders made by the Lord Chancellor or the Secretary of State under this Act, other than—

(a)regulations under section 34 (loss of capacity during research project),

(b)regulations under section 41 (adjusting role of independent mental capacity advocacy service),

(c)regulations under paragraph 32(1)(b) of Schedule 3 (private international law relating to the protection of adults),

(d)an order of the kind mentioned in section 67(6) (consequential amendments of primary legislation), or

(e)an order under section 68 (commencement),

is subject to annulment in pursuance of a resolution of either House of Parliament.

(3)A statutory instrument containing an Order in Council under paragraph 31 of Schedule 3 (provision to give further effect to Hague Convention) is subject to annulment in pursuance of a resolution of either House of Parliament.

(4)A statutory instrument containing regulations made by the Secretary of State under section 34 or 41 or by the Lord Chancellor under paragraph 32(1)(b) of Schedule 3 may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

[F51(4A)Subsection (2) does not apply to a statutory instrument containing regulations made by the Secretary of State under Schedule A1.

(4B)If such a statutory instrument contains regulations under paragraph 42(2)(b), 129, 162 or 164 of Schedule A1 (whether or not it also contains other regulations), the instrument may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

(4C)Subject to that, such a statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament.]

[F52F51(5)An order under section 21—

(a)may include supplementary, incidental, consequential, transitional or saving provision;

(b)may make different provision for different cases;

(c)is to be made in the form of a statutory instrument to which the Statutory Instruments Act 1946 applies as if the order were made by a Minister of the Crown; and

(d)is subject to annulment in pursuance of a resolution of either House of Parliament.F52]

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Amendments (Textual)

66Existing receivers and enduring powers of attorney etc.E+W

(1)The following provisions cease to have effect—

(a)Part 7 of the Mental Health Act,

(b)the Enduring Powers of Attorney Act 1985 (c. 29).

(2)No enduring power of attorney within the meaning of the 1985 Act is to be created after the commencement of subsection (1)(b).

(3)Schedule 4 has effect in place of the 1985 Act in relation to any enduring power of attorney created before the commencement of subsection (1)(b).

(4)Schedule 5 contains transitional provisions and savings in relation to Part 7 of the Mental Health Act and the 1985 Act.

67Minor and consequential amendments and repealsE+W

(1)Schedule 6 contains minor and consequential amendments.

(2)Schedule 7 contains repeals.

(3)The Lord Chancellor may by order make supplementary, incidental, consequential, transitional or saving provision for the purposes of, in consequence of, or for giving full effect to a provision of this Act.

(4)An order under subsection (3) may, in particular—

(a)provide for a provision of this Act which comes into force before another provision of this Act has come into force to have effect, until the other provision has come into force, with specified modifications;

(b)amend, repeal or revoke an enactment, other than one contained in an Act or Measure passed in a Session after the one in which this Act is passed.

(5)The amendments that may be made under subsection (4)(b) are in addition to those made by or under any other provision of this Act.

(6)An order under subsection (3) which amends or repeals a provision of an Act or Measure may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.

68Commencement and extentE+W

(1)This Act, other than sections 30 to 41, comes into force in accordance with provision made by order by the Lord Chancellor.

(2)Sections 30 to 41 come into force in accordance with provision made by order by—

(a)the Secretary of State, in relation to England, and

(b)the National Assembly for Wales, in relation to Wales.

(3)An order under this section may appoint different days for different provisions and different purposes.

(4)Subject to subsections (5) and (6), this Act extends to England and Wales only.

(5)The following provisions extend to the United Kingdom—

(a)paragraph 16(1) of Schedule 1 (evidence of instruments and of registration of lasting powers of attorney),

(b)paragraph 15(3) of Schedule 4 (evidence of instruments and of registration of enduring powers of attorney).

(6)Subject to any provision made in Schedule 6, the amendments and repeals made by Schedules 6 and 7 have the same extent as the enactments to which they relate.

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Subordinate Legislation Made

P1S. 68(1) power partly exercised: 1.4.2007 appointed for specified provisions and purposes by {S.I. 2007/563}, art. 2

P2S. 68(1) power partly exercised: 1.10.2007 appointed for specified provisions and purposes by {S.I. 2007/1897}, art. 2

P3S. 68(2) power partly exercised: different dates appointed for specified provisions and purposes by {S.I. 2007/856}, arts. 2-5

P4S. 68(2)(a) power partly exercised: different dates appointed for specified provisions and purposes by {S.I. 2006/2814}, arts. 2-5 (as amended by S.I. 2006/3473, art. 2)

69Short titleE+W

This Act may be cited as the Mental Capacity Act 2005.

SCHEDULES

[F53SCHEDULE A1E+WHospital and care home residents: deprivation of liberty

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Amendments (Textual)

F53Sch. A1 inserted (1.4.2008 for certain purposes and otherwise 1.4.2009) by Mental Health Act 2007 (c. 12), ss. 50, 56, Sch. 7; S.I. 2008/745, art. 4(a); S.I. 2009/139, art. 2(c) (with art. 3, Sch. paras. 3, 4)

Part 1 E+WAuthorisation to deprive residents of liberty etc

Application of PartE+W

1(1)This Part applies if the following conditions are met.E+W

(2)The first condition is that a person (“P”) is detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.

(3)The second condition is that a standard or urgent authorisation is in force.

(4)The third condition is that the standard or urgent authorisation relates—

(a)to P, and

(b)to the hospital or care home in which P is detained.

Authorisation to deprive P of libertyE+W

2The managing authority of the hospital or care home may deprive P of his liberty by detaining him as mentioned in paragraph 1(2).E+W

No liability for acts done for purpose of depriving P of libertyE+W

3(1)This paragraph applies to any act which a person (“D”) does for the purpose of detaining P as mentioned in paragraph 1(2).E+W

(2)D does not incur any liability in relation to the act that he would not have incurred if P—

(a)had had capacity to consent in relation to D's doing the act, and

(b)had consented to D's doing the act.

No protection for negligent acts etcE+W

4(1)Paragraphs 2 and 3 do not exclude a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing any thing.E+W

(2)Paragraphs 2 and 3 do not authorise a person to do anything otherwise than for the purpose of the standard or urgent authorisation that is in force.

(3)In a case where a standard authorisation is in force, paragraphs 2 and 3 do not authorise a person to do anything which does not comply with the conditions (if any) included in the authorisation.

Part 2 E+WInterpretation: main terms

IntroductionE+W

5This Part applies for the purposes of this Schedule.E+W

Detained residentE+W

6Detained resident” means a person detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.E+W

Relevant person etcE+W

7In relation to a person who is, or is to be, a detained resident—E+W

  • relevant person” means the person in question;

  • relevant hospital or care home” means the hospital or care home in question;

  • relevant care or treatment” means the care or treatment in question.

AuthorisationsE+W

8Standard authorisation” means an authorisation given under Part 4.E+W

9Urgent authorisation” means an authorisation given under Part 5.E+W

10Authorisation under this Schedule” means either of the following—E+W

(a)a standard authorisation;

(b)an urgent authorisation.

11(1)The purpose of a standard authorisation is the purpose which is stated in the authorisation in accordance with paragraph 55(1)(d).E+W

(2)The purpose of an urgent authorisation is the purpose which is stated in the authorisation in accordance with paragraph 80(d).

Part 3 E+WThe qualifying requirements

The qualifying requirementsE+W

12(1)These are the qualifying requirements referred to in this Schedule—E+W

(a)the age requirement;

(b)the mental health requirement;

(c)the mental capacity requirement;

(d)the best interests requirement;

(e)the eligibility requirement;

(f)the no refusals requirement.

(2)Any question of whether a person who is, or is to be, a detained resident meets the qualifying requirements is to be determined in accordance with this Part.

(3)In a case where—

(a)the question of whether a person meets a particular qualifying requirement arises in relation to the giving of a standard authorisation, and

(b)any circumstances relevant to determining that question are expected to change between the time when the determination is made and the time when the authorisation is expected to come into force,

those circumstances are to be taken into account as they are expected to be at the later time.

The age requirementE+W

13The relevant person meets the age requirement if he has reached 18.E+W

The mental health requirementE+W

14(1)The relevant person meets the mental health requirement if he is suffering from mental disorder (within the meaning of the Mental Health Act, but disregarding any exclusion for persons with learning disability).E+W

(2)An exclusion for persons with learning disability is any provision of the Mental Health Act which provides for a person with learning disability not to be regarded as suffering from mental disorder for one or more purposes of that Act.

The mental capacity requirementE+W

15The relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.E+W

The best interests requirementE+W

16(1)The relevant person meets the best interests requirement if all of the following conditions are met.E+W

(2)The first condition is that the relevant person is, or is to be, a detained resident.

(3)The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(4)The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.

(5)The fourth condition is that it is a proportionate response to—

(a)the likelihood of the relevant person suffering harm, and

(b)the seriousness of that harm,

for him to be a detained resident.

The eligibility requirementE+W

17(1)The relevant person meets the eligibility requirement unless he is ineligible to be deprived of liberty by this Act.E+W

(2)Schedule 1A applies for the purpose of determining whether or not P is ineligible to be deprived of liberty by this Act.

The no refusals requirementE+W

18The relevant person meets the no refusals requirement unless there is a refusal within the meaning of paragraph 19 or 20.E+W

19(1)There is a refusal if these conditions are met—E+W

(a)the relevant person has made an advance decision;

(b)the advance decision is valid;

(c)the advance decision is applicable to some or all of the relevant treatment.

(2)Expressions used in this paragraph and any of sections 24, 25 or 26 have the same meaning in this paragraph as in that section.

20(1)There is a refusal if it would be in conflict with a valid decision of a donee or deputy for the relevant person to be accommodated in the relevant hospital or care home for the purpose of receiving some or all of the relevant care or treatment—E+W

(a)in circumstances which amount to deprivation of the person's liberty, or

(b)at all.

(2)A donee is a donee of a lasting power of attorney granted by the relevant person.

(3)A decision of a donee or deputy is valid if it is made—

(a)within the scope of his authority as donee or deputy, and

(b)in accordance with Part 1 of this Act.

Part 4 E+WStandard authorisations

Supervisory body to give authorisationE+W

21Only the supervisory body may give a standard authorisation.E+W

22The supervisory body may not give a standard authorisation unless—E+W

(a)the managing authority of the relevant hospital or care home have requested it, or

(b)paragraph 71 applies (right of third party to require consideration of whether authorisation needed).

23The managing authority may not make a request for a standard authorisation unless—E+W

(a)they are required to do so by paragraph 24 (as read with paragraphs 27 to 29),

(b)they are required to do so by paragraph 25 (as read with paragraph 28), or

(c)they are permitted to do so by paragraph 30.

Duty to request authorisation: basic casesE+W

24(1)The managing authority must request a standard authorisation in any of the following cases.E+W

(2)The first case is where it appears to the managing authority that the relevant person—

(a)is not yet accommodated in the relevant hospital or care home,

(b)is likely — at some time within the next 28 days — to be a detained resident in the relevant hospital or care home, and

(c)is likely—

(i)at that time, or

(ii)at some later time within the next 28 days,

to meet all of the qualifying requirements.

(3)The second case is where it appears to the managing authority that the relevant person—

(a)is already accommodated in the relevant hospital or care home,

(b)is likely — at some time within the next 28 days — to be a detained resident in the relevant hospital or care home, and

(c)is likely—

(i)at that time, or

(ii)at some later time within the next 28 days,

to meet all of the qualifying requirements.

(4)The third case is where it appears to the managing authority that the relevant person—

(a)is a detained resident in the relevant hospital or care home, and

(b)meets all of the qualifying requirements, or is likely to do so at some time within the next 28 days.

(5)This paragraph is subject to paragraphs 27 to 29.

Duty to request authorisation: change in place of detentionE+W

25(1)The relevant managing authority must request a standard authorisation if it appears to them that these conditions are met.E+W

(2)The first condition is that a standard authorisation—

(a)has been given, and

(b)has not ceased to be in force.

(3)The second condition is that there is, or is to be, a change in the place of detention.

(4)This paragraph is subject to paragraph 28.

26(1)This paragraph applies for the purposes of paragraph 25.E+W

(2)There is a change in the place of detention if the relevant person—

(a)ceases to be a detained resident in the stated hospital or care home, and

(b)becomes a detained resident in a different hospital or care home (“the new hospital or care home”).

(3)The stated hospital or care home is the hospital or care home to which the standard authorisation relates.

(4)The relevant managing authority are the managing authority of the new hospital or care home.

Other authority for detention: request for authorisationE+W

27(1)This paragraph applies if, by virtue of section 4A(3), a decision of the court authorises the relevant person to be a detained resident.E+W

(2)Paragraph 24 does not require a request for a standard authorisation to be made in relation to that detention unless these conditions are met.

(3)The first condition is that the standard authorisation would be in force at a time immediately after the expiry of the other authority.

(4)The second condition is that the standard authorisation would not be in force at any time on or before the expiry of the other authority.

(5)The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the other authority.

(6)In this paragraph—

(a)the other authority is—

(i)the decision mentioned in sub-paragraph (1), or

(ii)any further decision of the court which, by virtue of section 4A(3), authorises, or is expected to authorise, the relevant person to be a detained resident;

(b)the expiry of the other authority is the time when the other authority is expected to cease to authorise the relevant person to be a detained resident.

Request refused: no further request unless change of circumstancesE+W

28(1)This paragraph applies if—E+W

(a)a managing authority request a standard authorisation under paragraph 24 or 25, and

(b)the supervisory body are prohibited by paragraph 50(2) from giving the authorisation.

(2)Paragraph 24 or 25 does not require that managing authority to make a new request for a standard authorisation unless it appears to the managing authority that—

(a)there has been a change in the relevant person's case, and

(b)because of that change, the supervisory body are likely to give a standard authorisation if requested.

Authorisation given: request for further authorisationE+W

29(1)This paragraph applies if a standard authorisation—E+W

(a)has been given in relation to the detention of the relevant person, and

(b)that authorisation (“the existing authorisation”) has not ceased to be in force.

(2)Paragraph 24 does not require a new request for a standard authorisation (“the new authorisation”) to be made unless these conditions are met.

(3)The first condition is that the new authorisation would be in force at a time immediately after the expiry of the existing authorisation.

(4)The second condition is that the new authorisation would not be in force at any time on or before the expiry of the existing authorisation.

(5)The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the existing authorisation.

(6)The expiry of the existing authorisation is the time when it is expected to cease to be in force.

Power to request authorisationE+W

30(1)This paragraph applies if—E+W

(a)a standard authorisation has been given in relation to the detention of the relevant person,

(b)that authorisation (“the existing authorisation”) has not ceased to be in force,

(c)the requirement under paragraph 24 to make a request for a new standard authorisation does not apply, because of paragraph 29, and

(d)a review of the existing authorisation has been requested, or is being carried out, in accordance with Part 8.

(2)The managing authority may request a new standard authorisation which would be in force on or before the expiry of the existing authorisation; but only if it would also be in force immediately after that expiry.

(3)The expiry of the existing authorisation is the time when it is expected to cease to be in force.

(4)Further provision relating to cases where a request is made under this paragraph can be found in—

(a)paragraph 62 (effect of decision about request), and

(b)paragraph 124 (effect of request on Part 8 review).

Information included in requestE+W

31A request for a standard authorisation must include the information (if any) required by regulations.E+W

Records of requestsE+W

32(1)The managing authority of a hospital or care home must keep a written record of—E+W

(a)each request that they make for a standard authorisation, and

(b)the reasons for making each request.

(2)A supervisory body must keep a written record of each request for a standard authorisation that is made to them.

Relevant person must be assessedE+W

33(1)This paragraph applies if the supervisory body are requested to give a standard authorisation.E+W

(2)The supervisory body must secure that all of these assessments are carried out in relation to the relevant person—

(a)an age assessment;

(b)a mental health assessment;

(c)a mental capacity assessment;

(d)a best interests assessment;

(e)an eligibility assessment;

(f)a no refusals assessment.

(3)The person who carries out any such assessment is referred to as the assessor.

(4)Regulations may be made about the period (or periods) within which assessors must carry out assessments.

(5)This paragraph is subject to paragraphs 49 and 133.

Age assessmentE+W

34An age assessment is an assessment of whether the relevant person meets the age requirement.E+W

Mental health assessmentE+W

35A mental health assessment is an assessment of whether the relevant person meets the mental health requirement.E+W

36When carrying out a mental health assessment, the assessor must also—E+W

(a)consider how (if at all) the relevant person's mental health is likely to be affected by his being a detained resident, and

(b)notify the best interests assessor of his conclusions.

Mental capacity assessmentE+W

37A mental capacity assessment is an assessment of whether the relevant person meets the mental capacity requirement.E+W

Best interests assessmentE+W

38A best interests assessment is an assessment of whether the relevant person meets the best interests requirement.E+W

39(1)In carrying out a best interests assessment, the assessor must comply with the duties in sub-paragraphs (2) and (3).E+W

(2)The assessor must consult the managing authority of the relevant hospital or care home.

(3)The assessor must have regard to all of the following—

(a)the conclusions which the mental health assessor has notified to the best interests assessor in accordance with paragraph 36(b);

(b)any relevant needs assessment;

(c)any relevant care plan.

(4)A relevant needs assessment is an assessment of the relevant person's needs which—

(a)was carried out in connection with the relevant person being accommodated in the relevant hospital or care home, and

(b)was carried out by or on behalf of—

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

(ii)the supervisory body.

(5)A relevant care plan is a care plan which—

(a)sets out how the relevant person's needs are to be met whilst he is accommodated in the relevant hospital or care home, and

(b)was drawn up by or on behalf of—

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

(ii)the supervisory body.

(6)The managing authority must give the assessor a copy of—

(a)any relevant needs assessment carried out by them or on their behalf, or

(b)any relevant care plan drawn up by them or on their behalf.

(7)The supervisory body must give the assessor a copy of—

(a)any relevant needs assessment carried out by them or on their behalf, or

(b)any relevant care plan drawn up by them or on their behalf.

(8)The duties in sub-paragraphs (2) and (3) do not affect any other duty to consult or to take the views of others into account.

40(1)This paragraph applies whatever conclusion the best interests assessment comes to.E+W

(2)The assessor must state in the best interests assessment the name and address of every interested person whom he has consulted in carrying out the assessment.

41Paragraphs 42 and 43 apply if the best interests assessment comes to the conclusion that the relevant person meets the best interests requirement.E+W

42(1)The assessor must state in the assessment the maximum authorisation period.E+W

(2)The maximum authorisation period is the shorter of these periods—

(a)the period which, in the assessor's opinion, would be the appropriate maximum period for the relevant person to be a detained resident under the standard authorisation that has been requested;

(b)1 year, or such shorter period as may be prescribed in regulations.

(3)Regulations under sub-paragraph (2)(b)—

(a)need not provide for a shorter period to apply in relation to all standard authorisations;

(b)may provide for different periods to apply in relation to different kinds of standard authorisations.

(4)Before making regulations under sub-paragraph (2)(b) the Secretary of State must consult all of the following—

(a)each body required by regulations under paragraph 162 to monitor and report on the operation of this Schedule in relation to England;

(b)such other persons as the Secretary of State considers it appropriate to consult.

(5)Before making regulations under sub-paragraph (2)(b) the National Assembly for Wales must consult all of the following—

(a)each person or body directed under paragraph 163(2) to carry out any function of the Assembly of monitoring and reporting on the operation of this Schedule in relation to Wales;

(b)such other persons as the Assembly considers it appropriate to consult.

43The assessor may include in the assessment recommendations about conditions to which the standard authorisation is, or is not, to be subject in accordance with paragraph 53.E+W

44(1)This paragraph applies if the best interests assessment comes to the conclusion that the relevant person does not meet the best interests requirement.E+W

(2)If, on the basis of the information taken into account in carrying out the assessment, it appears to the assessor that there is an unauthorised deprivation of liberty, he must include a statement to that effect in the assessment.

(3)There is an unauthorised deprivation of liberty if the managing authority of the relevant hospital or care home are already depriving the relevant person of his liberty without authority of the kind mentioned in section 4A.

45The duties with which the best interests assessor must comply are subject to the provision included in appointment regulations under Part 10 (in particular, provision made under paragraph 146).E+W

Eligibility assessmentE+W

46An eligibility assessment is an assessment of whether the relevant person meets the eligibility requirement.E+W

47(1)Regulations may—E+W

(a)require an eligibility assessor to request a best interests assessor to provide relevant eligibility information, and

(b)require the best interests assessor, if such a request is made, to provide such relevant eligibility information as he may have.

(2)In this paragraph—

  • best interests assessor” means any person who is carrying out, or has carried out, a best interests assessment in relation to the relevant person;

  • eligibility assessor” means a person carrying out an eligibility assessment in relation to the relevant person;

  • “relevant eligibility information” is information relevant to assessing whether or not the relevant person is ineligible by virtue of paragraph 5 of Schedule 1A.

No refusals assessmentE+W

48A no refusals assessment is an assessment of whether the relevant person meets the no refusals requirement.E+W

Equivalent assessment already carried outE+W

49(1)The supervisory body are not required by paragraph 33 to secure that a particular kind of assessment (“the required assessment”) is carried out in relation to the relevant person if the following conditions are met.E+W

(2)The first condition is that the supervisory body have a written copy of an assessment of the relevant person (“the existing assessment”) that has already been carried out.

(3)The second condition is that the existing assessment complies with all requirements under this Schedule with which the required assessment would have to comply (if it were carried out).

(4)The third condition is that the existing assessment was carried out within the previous 12 months; but this condition need not be met if the required assessment is an age assessment.

(5)The fourth condition is that the supervisory body are satisfied that there is no reason why the existing assessment may no longer be accurate.

(6)If the required assessment is a best interests assessment, in satisfying themselves as mentioned in sub-paragraph (5), the supervisory body must take into account any information given, or submissions made, by—

(a)the relevant person's representative,

(b)any section 39C IMCA, or

(c)any section 39D IMCA.

(7)It does not matter whether the existing assessment was carried out in connection with a request for a standard authorisation or for some other purpose.

(8)If, because of this paragraph, the supervisory body are not required by paragraph 33 to secure that the required assessment is carried out, the existing assessment is to be treated for the purposes of this Schedule—

(a)as an assessment of the same kind as the required assessment, and

(b)as having been carried out under paragraph 33 in connection with the request for the standard authorisation.

Duty to give authorisationE+W

50(1)The supervisory body must give a standard authorisation if—E+W

(a)all assessments are positive, and

(b)the supervisory body have written copies of all those assessments.

(2)The supervisory body must not give a standard authorisation except in accordance with sub-paragraph (1).

(3)All assessments are positive if each assessment carried out under paragraph 33 has come to the conclusion that the relevant person meets the qualifying requirement to which the assessment relates.

Terms of authorisationE+W

51(1)If the supervisory body are required to give a standard authorisation, they must decide the period during which the authorisation is to be in force.E+W

(2)That period must not exceed the maximum authorisation period stated in the best interests assessment.

52A standard authorisation may provide for the authorisation to come into force at a time after it is given.E+W

53(1)A standard authorisation may be given subject to conditions.E+W

(2)Before deciding whether to give the authorisation subject to conditions, the supervisory body must have regard to any recommendations in the best interests assessment about such conditions.

(3)The managing authority of the relevant hospital or care home must ensure that any conditions are complied with.

Form of authorisationE+W

54A standard authorisation must be in writing.E+W

55(1)A standard authorisation must state the following things—E+W

(a)the name of the relevant person;

(b)the name of the relevant hospital or care home;

(c)the period during which the authorisation is to be in force;

(d)the purpose for which the authorisation is given;

(e)any conditions subject to which the authorisation is given;

(f)the reason why each qualifying requirement is met.

(2)The statement of the reason why the eligibility requirement is met must be framed by reference to the cases in the table in paragraph 2 of Schedule 1A.

56(1)If the name of the relevant hospital or care home changes, the standard authorisation is to be read as if it stated the current name of the hospital or care home.E+W

(2)But sub-paragraph (1) is subject to any provision relating to the change of name which is made in any enactment or in any instrument made under an enactment.

Duty to give information about decisionE+W

57(1)This paragraph applies if—E+W

(a)a request is made for a standard authorisation, and

(b)the supervisory body are required by paragraph 50(1) to give the standard authorisation.

(2)The supervisory body must give a copy of the authorisation to each of the following—

(a)the relevant person's representative;

(b)the managing authority of the relevant hospital or care home;

(c)the relevant person;

(d)any section 39A IMCA;

(e)every interested person consulted by the best interests assessor.

(3)The supervisory body must comply with this paragraph as soon as practicable after they give the standard authorisation.

58(1)This paragraph applies if—E+W

(a)a request is made for a standard authorisation, and

(b)the supervisory body are prohibited by paragraph 50(2) from giving the standard authorisation.

(2)The supervisory body must give notice, stating that they are prohibited from giving the authorisation, to each of the following—

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

(b)the relevant person;

(c)any section 39A IMCA;

(d)every interested person consulted by the best interests assessor.

(3)The supervisory body must comply with this paragraph as soon as practicable after it becomes apparent to them that they are prohibited from giving the authorisation.

Duty to give information about effect of authorisationE+W

59(1)This paragraph applies if a standard authorisation is given.E+W

(2)The managing authority of the relevant hospital or care home must take such steps as are practicable to ensure that the relevant person understands all of the following—

(a)the effect of the authorisation;

(b)the right to make an application to the court to exercise its jurisdiction under section 21A;

(c)the right under Part 8 to request a review;

(d)the right to have a section 39D IMCA appointed;

(e)how to have a section 39D IMCA appointed.

(3)Those steps must be taken as soon as is practicable after the authorisation is given.

(4)Those steps must include the giving of appropriate information both orally and in writing.

(5)Any written information given to the relevant person must also be given by the managing authority to the relevant person's representative.

(6)They must give the information to the representative as soon as is practicable after it is given to the relevant person.

(7)Sub-paragraph (8) applies if the managing authority is notified that a section 39D IMCA has been appointed.

(8)As soon as is practicable after being notified, the managing authority must give the section 39D IMCA a copy of the written information given in accordance with sub-paragraph (4).

Records of authorisationsE+W

60A supervisory body must keep a written record of all of the following information—E+W

(a)the standard authorisations that they have given;

(b)the requests for standard authorisations in response to which they have not given an authorisation;

(c)in relation to each standard authorisation given: the matters stated in the authorisation in accordance with paragraph 55.

Variation of an authorisationE+W

61(1)A standard authorisation may not be varied except in accordance with Part 7 or 8.E+W

(2)This paragraph does not affect the powers of the Court of Protection or of any other court.

Effect of decision about request made under paragraph 25 or 30E+W

62(1)This paragraph applies where the managing authority request a new standard authorisation under either of the following—E+W

(a)paragraph 25 (change in place of detention);

(b)paragraph 30 (existing authorisation subject to review).

(2)If the supervisory body are required by paragraph 50(1) to give the new authorisation, the existing authorisation terminates at the time when the new authorisation comes into force.

(3)If the supervisory body are prohibited by paragraph 50(2) from giving the new authorisation, there is no effect on the existing authorisation's continuation in force.

When an authorisation is in forceE+W

63(1)A standard authorisation comes into force when it is given.E+W

(2)But if the authorisation provides for it to come into force at a later time, it comes into force at that time.

64(1)A standard authorisation ceases to be in force at the end of the period stated in the authorisation in accordance with paragraph 55(1)(c).E+W

(2)But if the authorisation terminates before then in accordance with paragraph 62(2) or any other provision of this Schedule, it ceases to be in force when the termination takes effect.

(3)This paragraph does not affect the powers of the Court of Protection or of any other court.

65(1)This paragraph applies if a standard authorisation ceases to be in force.E+W

(2)The supervisory body must give notice that the authorisation has ceased to be in force.

(3)The supervisory body must give that notice to all of the following—

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

(b)the relevant person;

(c)the relevant person's representative;

(d)every interested person consulted by the best interests assessor.

(4)The supervisory body must give that notice as soon as practicable after the authorisation ceases to be in force.

When a request for a standard authorisation is “disposed of”E+W

66A request for a standard authorisation is to be regarded for the purposes of this Schedule as disposed of if the supervisory body have given—E+W

(a)a copy of the authorisation in accordance with paragraph 57, or

(b)notice in accordance with paragraph 58.

Right of third party to require consideration of whether authorisation neededE+W

67For the purposes of paragraphs 68 to 73 there is an unauthorised deprivation of liberty if—E+W

(a)a person is already a detained resident in a hospital or care home, and

(b)the detention of the person is not authorised as mentioned in section 4A.

68(1)If the following conditions are met, an eligible person may request the supervisory body to decide whether or not there is an unauthorised deprivation of liberty.E+W

(2)The first condition is that the eligible person has notified the managing authority of the relevant hospital or care home that it appears to the eligible person that there is an unauthorised deprivation of liberty.

(3)The second condition is that the eligible person has asked the managing authority to request a standard authorisation in relation to the detention of the relevant person.

(4)The third condition is that the managing authority has not requested a standard authorisation within a reasonable period after the eligible person asks it to do so.

(5)In this paragraph “eligible person” means any person other than the managing authority of the relevant hospital or care home.

69(1)This paragraph applies if an eligible person requests the supervisory body to decide whether or not there is an unauthorised deprivation of liberty.E+W

(2)The supervisory body must select and appoint a person to carry out an assessment of whether or not the relevant person is a detained resident.

(3)But the supervisory body need not select and appoint a person to carry out such an assessment in either of these cases.

(4)The first case is where it appears to the supervisory body that the request by the eligible person is frivolous or vexatious.

(5)The second case is where it appears to the supervisory body that—

(a)the question of whether or not there is an unauthorised deprivation of liberty has already been decided, and

(b)since that decision, there has been no change of circumstances which would merit the question being decided again.

(6)The supervisory body must not select and appoint a person to carry out an assessment under this paragraph unless it appears to the supervisory body that the person would be—

(a)suitable to carry out a best interests assessment (if one were obtained in connection with a request for a standard authorisation relating to the relevant person), and

(b)eligible to carry out such a best interests assessment.

(7)The supervisory body must notify the persons specified in sub-paragraph (8)—

(a)that the supervisory body have been requested to decide whether or not there is an unauthorised deprivation of liberty;

(b)of their decision whether or not to select and appoint a person to carry out an assessment under this paragraph;

(c)if their decision is to select and appoint a person, of the person appointed.

(8)The persons referred to in sub-paragraph (7) are—

(a)the eligible person who made the request under paragraph 68;

(b)the person to whom the request relates;

(c)the managing authority of the relevant hospital or care home;

(d)any section 39A IMCA.

70(1)Regulations may be made about the period within which an assessment under paragraph 69 must be carried out.E+W

(2)Regulations made under paragraph 129(3) apply in relation to the selection and appointment of a person under paragraph 69 as they apply to the selection of a person under paragraph 129 to carry out a best interests assessment.

(3)The following provisions apply to an assessment under paragraph 69 as they apply to an assessment carried out in connection with a request for a standard authorisation—

(a)paragraph 131 (examination and copying of records);

(b)paragraph 132 (representations);

(c)paragraphs 134 and 135(1) and (2) (duty to keep records and give copies).

(4)The copies of the assessment which the supervisory body are required to give under paragraph 135(2) must be given as soon as practicable after the supervisory body are themselves given a copy of the assessment.

71(1)This paragraph applies if—E+W

(a)the supervisory body obtain an assessment under paragraph 69,

(b)the assessment comes to the conclusion that the relevant person is a detained resident, and

(c)it appears to the supervisory body that the detention of the person is not authorised as mentioned in section 4A.

(2)This Schedule (including Part 5) applies as if the managing authority of the relevant hospital or care home had, in accordance with Part 4, requested the supervisory body to give a standard authorisation in relation to the relevant person.

(3)The managing authority of the relevant hospital or care home must supply the supervisory body with the information (if any) which the managing authority would, by virtue of paragraph 31, have had to include in a request for a standard authorisation.

(4)The supervisory body must notify the persons specified in paragraph 69(8)—

(a)of the outcome of the assessment obtained under paragraph 69, and

(b)that this Schedule applies as mentioned in sub-paragraph (2).

72(1)This paragraph applies if—E+W

(a)the supervisory body obtain an assessment under paragraph 69, and

(b)the assessment comes to the conclusion that the relevant person is not a detained resident.

(2)The supervisory body must notify the persons specified in paragraph 69(8) of the outcome of the assessment.

73(1)This paragraph applies if—E+W

(a)the supervisory body obtain an assessment under paragraph 69,

(b)the assessment comes to the conclusion that the relevant person is a detained resident, and

(c)it appears to the supervisory body that the detention of the person is authorised as mentioned in section 4A.

(2)The supervisory body must notify the persons specified in paragraph 69(8)—

(a)of the outcome of the assessment, and

(b)that it appears to the supervisory body that the detention is authorised.

Part 5 E+WUrgent authorisations

Managing authority to give authorisationE+W

74Only the managing authority of the relevant hospital or care home may give an urgent authorisation.E+W

75The managing authority may give an urgent authorisation only if they are required to do so by paragraph 76 (as read with paragraph 77).E+W

Duty to give authorisationE+W

76(1)The managing authority must give an urgent authorisation in either of the following cases.E+W

(2)The first case is where—

(a)the managing authority are required to make a request under paragraph 24 or 25 for a standard authorisation, and

(b)they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before they make the request.

(3)The second case is where—

(a)the managing authority have made a request under paragraph 24 or 25 for a standard authorisation, and

(b)they believe that the need for the relevant person to be a detained resident is so urgent that it is appropriate for the detention to begin before the request is disposed of.

(4)References in this paragraph to the detention of the relevant person are references to the detention to which paragraph 24 or 25 relates.

(5)This paragraph is subject to paragraph 77.

77(1)This paragraph applies where the managing authority have given an urgent authorisation (“the original authorisation”) in connection with a case where a person is, or is to be, a detained resident (“the existing detention”).E+W

(2)No new urgent authorisation is to be given under paragraph 76 in connection with the existing detention.

(3)But the managing authority may request the supervisory body to extend the duration of the original authorisation.

(4)Only one request under sub-paragraph (3) may be made in relation to the original authorisation.

(5)Paragraphs 84 to 86 apply to any request made under sub-paragraph (3).

Terms of authorisationE+W

78(1)If the managing authority decide to give an urgent authorisation, they must decide the period during which the authorisation is to be in force.E+W

(2)That period must not exceed 7 days.

Form of authorisationE+W

79An urgent authorisation must be in writing.E+W

80An urgent authorisation must state the following things—E+W

(a)the name of the relevant person;

(b)the name of the relevant hospital or care home;

(c)the period during which the authorisation is to be in force;

(d)the purpose for which the authorisation is given.

81(1)If the name of the relevant hospital or care home changes, the urgent authorisation is to be read as if it stated the current name of the hospital or care home.E+W

(2)But sub-paragraph (1) is subject to any provision relating to the change of name which is made in any enactment or in any instrument made under an enactment.

Duty to keep records and give copiesE+W

82(1)This paragraph applies if an urgent authorisation is given.E+W

(2)The managing authority must keep a written record of why they have given the urgent authorisation.

(3)As soon as practicable after giving the authorisation, the managing authority must give a copy of the authorisation to all of the following—

(a)the relevant person;

(b)any section 39A IMCA.

Duty to give information about authorisationE+W

83(1)This paragraph applies if an urgent authorisation is given.E+W

(2)The managing authority of the relevant hospital or care home must take such steps as are practicable to ensure that the relevant person understands all of the following—

(a)the effect of the authorisation;

(b)the right to make an application to the court to exercise its jurisdiction under section 21A.

(3)Those steps must be taken as soon as is practicable after the authorisation is given.

(4)Those steps must include the giving of appropriate information both orally and in writing.

Request for extension of durationE+W

84(1)This paragraph applies if the managing authority make a request under paragraph 77 for the supervisory body to extend the duration of the original authorisation.E+W

(2)The managing authority must keep a written record of why they have made the request.

(3)The managing authority must give the relevant person notice that they have made the request.

(4)The supervisory body may extend the duration of the original authorisation if it appears to them that—

(a)the managing authority have made the required request for a standard authorisation,

(b)there are exceptional reasons why it has not yet been possible for that request to be disposed of, and

(c)it is essential for the existing detention to continue until the request is disposed of.

(5)The supervisory body must keep a written record that the request has been made to them.

(6)In this paragraph and paragraphs 85 and 86—

(a)original authorisation” and “existing detention” have the same meaning as in paragraph 77;

(b)the required request for a standard authorisation is the request that is referred to in paragraph 76(2) or (3).

85(1)This paragraph applies if, under paragraph 84, the supervisory body decide to extend the duration of the original authorisation.E+W

(2)The supervisory body must decide the period of the extension.

(3)That period must not exceed 7 days.

(4)The supervisory body must give the managing authority notice stating the period of the extension.

(5)The managing authority must then vary the original authorisation so that it states the extended duration.

(6)Paragraphs 82(3) and 83 apply (with the necessary modifications) to the variation of the original authorisation as they apply to the giving of an urgent authorisation.

(7)The supervisory body must keep a written record of—

(a)the outcome of the request, and

(b)the period of the extension.

86(1)This paragraph applies if, under paragraph 84, the supervisory body decide not to extend the duration of the original authorisation.E+W

(2)The supervisory body must give the managing authority notice stating—

(a)the decision, and

(b)their reasons for making it.

(3)The managing authority must give a copy of that notice to all of the following—

(a)the relevant person;

(b)any section 39A IMCA.

(4)The supervisory body must keep a written record of the outcome of the request.

No variationE+W

87(1)An urgent authorisation may not be varied except in accordance with paragraph 85.E+W

(2)This paragraph does not affect the powers of the Court of Protection or of any other court.

When an authorisation is in forceE+W

88An urgent authorisation comes into force when it is given.E+W

89(1)An urgent authorisation ceases to be in force at the end of the period stated in the authorisation in accordance with paragraph 80(c) (subject to any variation in accordance with paragraph 85).E+W

(2)But if the required request is disposed of before the end of that period, the urgent authorisation ceases to be in force as follows.

(3)If the supervisory body are required by paragraph 50(1) to give the requested authorisation, the urgent authorisation ceases to be in force when the requested authorisation comes into force.

(4)If the supervisory body are prohibited by paragraph 50(2) from giving the requested authorisation, the urgent authorisation ceases to be in force when the managing authority receive notice under paragraph 58.

(5)In this paragraph—

  • required request” means the request referred to in paragraph 76(2) or (3);

  • requested authorisation” means the standard authorisation to which the required request relates.

(6)This paragraph does not affect the powers of the Court of Protection or of any other court.

90(1)This paragraph applies if an urgent authorisation ceases to be in force.E+W

(2)The supervisory body must give notice that the authorisation has ceased to be in force.

(3)The supervisory body must give that notice to all of the following—

(a)the relevant person;

(b)any section 39A IMCA.

(4)The supervisory body must give that notice as soon as practicable after the authorisation ceases to be in force.

Part 6 E+WEligibility requirement not met: suspension of standard authorisation

91(1)This Part applies if the following conditions are met.E+W

(2)The first condition is that a standard authorisation—

(a)has been given, and

(b)has not ceased to be in force.

(3)The second condition is that the managing authority of the relevant hospital or care home are satisfied that the relevant person has ceased to meet the eligibility requirement.

(4)But this Part does not apply if the relevant person is ineligible by virtue of paragraph 5 of Schedule 1A (in which case see Part 8).

92The managing authority of the relevant hospital or care home must give the supervisory body notice that the relevant person has ceased to meet the eligibility requirement.E+W

93(1)This paragraph applies if the managing authority give the supervisory body notice under paragraph 92.E+W

(2)The standard authorisation is suspended from the time when the notice is given.

(3)The supervisory body must give notice that the standard authorisation has been suspended to the following persons—

(a)the relevant person;

(b)the relevant person's representative;

(c)the managing authority of the relevant hospital or care home.

94(1)This paragraph applies if, whilst the standard authorisation is suspended, the managing authority are satisfied that the relevant person meets the eligibility requirement again.E+W

(2)The managing authority must give the supervisory body notice that the relevant person meets the eligibility requirement again.

95(1)This paragraph applies if the managing authority give the supervisory body notice under paragraph 94.E+W

(2)The standard authorisation ceases to be suspended from the time when the notice is given.

(3)The supervisory body must give notice that the standard authorisation has ceased to be suspended to the following persons—

(a)the relevant person;

(b)the relevant person's representative;

(c)any section 39D IMCA;

(d)the managing authority of the relevant hospital or care home.

(4)The supervisory body must give notice under this paragraph as soon as practicable after they are given notice under paragraph 94.

96(1)This paragraph applies if no notice is given under paragraph 94 before the end of the relevant 28 day period.E+W

(2)The standard authorisation ceases to have effect at the end of the relevant 28 day period.

(3)The relevant 28 day period is the period of 28 days beginning with the day on which the standard authorisation is suspended under paragraph 93.

97The effect of suspending the standard authorisation is that Part 1 ceases to apply for as long as the authorisation is suspended.E+W

Part 7 E+WStandard authorisations: change in supervisory responsibility

Application of this PartE+W

98(1)This Part applies if these conditions are met.E+W

(2)The first condition is that a standard authorisation—

(a)has been given, and

(b)has not ceased to be in force.

(3)The second condition is that there is a change in supervisory responsibility.

(4)The third condition is that there is not a change in the place of detention (within the meaning of paragraph 25).

99For the purposes of this Part there is a change in supervisory responsibility if—E+W

(a)one body (“the old supervisory body”) have ceased to be supervisory body in relation to the standard authorisation, and

(b)a different body (“the new supervisory body”) have become supervisory body in relation to the standard authorisation.

Effect of change in supervisory responsibilityE+W

100(1)The new supervisory body becomes the supervisory body in relation to the authorisation.E+W

(2)Anything done by or in relation to the old supervisory body in connection with the authorisation has effect, so far as is necessary for continuing its effect after the change, as if done by or in relation to the new supervisory body.

(3)Anything which relates to the authorisation and which is in the process of being done by or in relation to the old supervisory body at the time of the change may be continued by or in relation to the new supervisory body.

(4)But—

(a)the old supervisory body do not, by virtue of this paragraph, cease to be liable for anything done by them in connection with the authorisation before the change; and

(b)the new supervisory body do not, by virtue of this paragraph, become liable for any such thing.

Part 8 E+WStandard authorisations: review

Application of this PartE+W

101(1)This Part applies if a standard authorisation—E+W

(a)has been given, and

(b)has not ceased to be in force.

(2)Paragraphs 102 to 122 are subject to paragraphs 123 to 125.

Review by supervisory bodyE+W

102(1)The supervisory body may at any time carry out a review of the standard authorisation in accordance with this Part.E+W

(2)The supervisory body must carry out such a review if they are requested to do so by an eligible person.

(3)Each of the following is an eligible person—

(a)the relevant person;

(b)the relevant person's representative;

(c)the managing authority of the relevant hospital or care home.

Request for reviewE+W

103(1)An eligible person may, at any time, request the supervisory body to carry out a review of the standard authorisation in accordance with this Part.E+W

(2)The managing authority of the relevant hospital or care home must make such a request if one or more of the qualifying requirements appear to them to be reviewable.

Grounds for reviewE+W

104(1)Paragraphs 105 to 107 set out the grounds on which the qualifying requirements are reviewable.E+W

(2)A qualifying requirement is not reviewable on any other ground.

Non-qualification groundE+W

105(1)Any of the following qualifying requirements is reviewable on the ground that the relevant person does not meet the requirement—E+W

(a)the age requirement;

(b)the mental health requirement;

(c)the mental capacity requirement;

(d)the best interests requirement;

(e)the no refusals requirement.

(2)The eligibility requirement is reviewable on the ground that the relevant person is ineligible by virtue of paragraph 5 of Schedule 1A.

(3)The ground in sub-paragraph (1) and the ground in sub-paragraph (2) are referred to as the non-qualification ground.

Change of reason groundE+W

106(1)Any of the following qualifying requirements is reviewable on the ground set out in sub-paragraph (2)—E+W

(a)the mental health requirement;

(b)the mental capacity requirement;

(c)the best interests requirement;

(d)the eligibility requirement;

(e)the no refusals requirement.

(2)The ground is that the reason why the relevant person meets the requirement is not the reason stated in the standard authorisation.

(3)This ground is referred to as the change of reason ground.

Variation of conditions groundE+W

107(1)The best interests requirement is reviewable on the ground that—E+W

(a)there has been a change in the relevant person's case, and

(b)because of that change, it would be appropriate to vary the conditions to which the standard authorisation is subject.

(2)This ground is referred to as the variation of conditions ground.

(3)A reference to varying the conditions to which the standard authorisation is subject is a reference to—

(a)amendment of an existing condition,

(b)omission of an existing condition, or

(c)inclusion of a new condition (whether or not there are already any existing conditions).

Notice that review to be carried outE+W

108(1)If the supervisory body are to carry out a review of the standard authorisation, they must give notice of the review to the following persons—E+W

(a)the relevant person;

(b)the relevant person's representative;

(c)the managing authority of the relevant hospital or care home.

(2)The supervisory body must give the notice—

(a)before they begin the review, or

(b)if that is not practicable, as soon as practicable after they have begun it.

(3)This paragraph does not require the supervisory body to give notice to any person who has requested the review.

Starting a reviewE+W

109To start a review of the standard authorisation, the supervisory body must decide which, if any, of the qualifying requirements appear to be reviewable.E+W

No reviewable qualifying requirementsE+W

110(1)This paragraph applies if no qualifying requirements appear to be reviewable.E+W

(2)This Part does not require the supervisory body to take any action in respect of the standard authorisation.

One or more reviewable qualifying requirementsE+W

111(1)This paragraph applies if one or more qualifying requirements appear to be reviewable.E+W

(2)The supervisory body must secure that a separate review assessment is carried out in relation to each qualifying requirement which appears to be reviewable.

(3)But sub-paragraph (2) does not require the supervisory body to secure that a best interests review assessment is carried out in a case where the best interests requirement appears to the supervisory body to be non-assessable.

(4)The best interests requirement is non-assessable if—

(a)the requirement is reviewable only on the variation of conditions ground, and

(b)the change in the relevant person's case is not significant.

(5)In making any decision whether the change in the relevant person's case is significant, regard must be had to—

(a)the nature of the change, and

(b)the period that the change is likely to last for.

Review assessmentsE+W

112(1)A review assessment is an assessment of whether the relevant person meets a qualifying requirement.E+W

(2)In relation to a review assessment—

(a)a negative conclusion is a conclusion that the relevant person does not meet the qualifying requirement to which the assessment relates;

(b)a positive conclusion is a conclusion that the relevant person meets the qualifying requirement to which the assessment relates.

(3)An age review assessment is a review assessment carried out in relation to the age requirement.

(4)A mental health review assessment is a review assessment carried out in relation to the mental health requirement.

(5)A mental capacity review assessment is a review assessment carried out in relation to the mental capacity requirement.

(6)A best interests review assessment is a review assessment carried out in relation to the best interests requirement.

(7)An eligibility review assessment is a review assessment carried out in relation to the eligibility requirement.

(8)A no refusals review assessment is a review assessment carried out in relation to the no refusals requirement.

113(1)In carrying out a review assessment, the assessor must comply with any duties which would be imposed upon him under Part 4 if the assessment were being carried out in connection with a request for a standard authorisation.E+W

(2)But in the case of a best interests review assessment, paragraphs 43 and 44 do not apply.

(3)Instead of what is required by paragraph 43, the best interests review assessment must include recommendations about whether — and, if so, how — it would be appropriate to vary the conditions to which the standard authorisation is subject.

Best interests requirement reviewable but non-assessableE+W

114(1)This paragraph applies in a case where—E+W

(a)the best interests requirement appears to be reviewable, but

(b)in accordance with paragraph 111(3), the supervisory body are not required to secure that a best interests review assessment is carried out.

(2)The supervisory body may vary the conditions to which the standard authorisation is subject in such ways (if any) as the supervisory body think are appropriate in the circumstances.

Best interests review assessment positiveE+W

115(1)This paragraph applies in a case where—E+W

(a)a best interests review assessment is carried out, and

(b)the assessment comes to a positive conclusion.

(2)The supervisory body must decide the following questions—

(a)whether or not the best interests requirement is reviewable on the change of reason ground;

(b)whether or not the best interests requirement is reviewable on the variation of conditions ground;

(c)if so, whether or not the change in the person's case is significant.

(3)If the supervisory body decide that the best interests requirement is reviewable on the change of reason ground, they must vary the standard authorisation so that it states the reason why the relevant person now meets that requirement.

(4)If the supervisory body decide that—

(a)the best interests requirement is reviewable on the variation of conditions ground, and

(b)the change in the relevant person's case is not significant,

they may vary the conditions to which the standard authorisation is subject in such ways (if any) as they think are appropriate in the circumstances.

(5)If the supervisory body decide that—

(a)the best interests requirement is reviewable on the variation of conditions ground, and

(b)the change in the relevant person's case is significant,

they must vary the conditions to which the standard authorisation is subject in such ways as they think are appropriate in the circumstances.

(6)If the supervisory body decide that the best interests requirement is not reviewable on—

(a)the change of reason ground, or

(b)the variation of conditions ground,

this Part does not require the supervisory body to take any action in respect of the standard authorisation so far as the best interests requirement relates to it.

Mental health, mental capacity, eligibility or no refusals review assessment positiveE+W

116(1)This paragraph applies if the following conditions are met.E+W

(2)The first condition is that one or more of the following are carried out—

(a)a mental health review assessment;

(b)a mental capacity review assessment;

(c)an eligibility review assessment;

(d)a no refusals review assessment.

(3)The second condition is that each assessment carried out comes to a positive conclusion.

(4)The supervisory body must decide whether or not each of the assessed qualifying requirements is reviewable on the change of reason ground.

(5)If the supervisory body decide that any of the assessed qualifying requirements is reviewable on the change of reason ground, they must vary the standard authorisation so that it states the reason why the relevant person now meets the requirement or requirements in question.

(6)If the supervisory body decide that none of the assessed qualifying requirements are reviewable on the change of reason ground, this Part does not require the supervisory body to take any action in respect of the standard authorisation so far as those requirements relate to it.

(7)An assessed qualifying requirement is a qualifying requirement in relation to which a review assessment is carried out.

One or more review assessments negativeE+W

117(1)This paragraph applies if one or more of the review assessments carried out comes to a negative conclusion.E+W

(2)The supervisory body must terminate the standard authorisation with immediate effect.

Completion of a reviewE+W

118(1)The review of the standard authorisation is complete in any of the following cases.E+W

(2)The first case is where paragraph 110 applies.

(3)The second case is where—

(a)paragraph 111 applies, and

(b)paragraph 117 requires the supervisory body to terminate the standard authorisation.

(4)In such a case, the supervisory body need not comply with any of the other provisions of paragraphs 114 to 116 which would be applicable to the review (were it not for this sub-paragraph).

(5)The third case is where—

(a)paragraph 111 applies,

(b)paragraph 117 does not require the supervisory body to terminate the standard authorisation, and

(c)the supervisory body comply with all of the provisions of paragraphs 114 to 116 (so far as they are applicable to the review).

Variations under this PartE+W

119Any variation of the standard authorisation made under this Part must be in writing.E+W

Notice of outcome of reviewE+W

120(1)When the review of the standard authorisation is complete, the supervisory body must give notice to all of the following—E+W

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

(b)the relevant person;

(c)the relevant person's representative;

(d)any section 39D IMCA.

(2)That notice must state—

(a)the outcome of the review, and

(b)what variation (if any) has been made to the authorisation under this Part.

RecordsE+W

121A supervisory body must keep a written record of the following information—E+W

(a)each request for a review that is made to them;

(b)the outcome of each request;

(c)each review which they carry out;

(d)the outcome of each review which they carry out;

(e)any variation of an authorisation made in consequence of a review.

Relationship between review and suspension under Part 6E+W

122(1)This paragraph applies if a standard authorisation is suspended in accordance with Part 6.E+W

(2)No review may be requested under this Part whilst the standard authorisation is suspended.

(3)If a review has already been requested, or is being carried out, when the standard authorisation is suspended, no steps are to be taken in connection with that review whilst the authorisation is suspended.

Relationship between review and request for new authorisationE+W

123(1)This paragraph applies if, in accordance with paragraph 24 (as read with paragraph 29), the managing authority of the relevant hospital or care home make a request for a new standard authorisation which would be in force after the expiry of the existing authorisation.E+W

(2)No review may be requested under this Part until the request for the new standard authorisation has been disposed of.

(3)If a review has already been requested, or is being carried out, when the new standard authorisation is requested, no steps are to be taken in connection with that review until the request for the new standard authorisation has been disposed of.

124(1)This paragraph applies if—E+W

(a)a review under this Part has been requested, or is being carried out, and

(b)the managing authority of the relevant hospital or care home make a request under paragraph 30 for a new standard authorisation which would be in force on or before, and after, the expiry of the existing authorisation.

(2)No steps are to be taken in connection with the review under this Part until the request for the new standard authorisation has been disposed of.

125In paragraphs 123 and 124—E+W

(a)the existing authorisation is the authorisation referred to in paragraph 101;

(b)the expiry of the existing authorisation is the time when it is expected to cease to be in force.

Part 9 E+WAssessments under this Schedule

IntroductionE+W

126This Part contains provision about assessments under this Schedule.E+W

127An assessment under this Schedule is either of the following—E+W

(a)an assessment carried out in connection with a request for a standard authorisation under Part 4;

(b)a review assessment carried out in connection with a review of a standard authorisation under Part 8.

128In this Part, in relation to an assessment under this Schedule—E+W

  • assessor” means the person carrying out the assessment;

  • relevant procedure” means—

    (a)

    the request for the standard authorisation, or

    (b)

    the review of the standard authorisation;

  • supervisory body” means the supervisory body responsible for securing that the assessment is carried out.

Supervisory body to select assessorE+W

129(1)It is for the supervisory body to select a person to carry out an assessment under this Schedule.E+W

(2)The supervisory body must not select a person to carry out an assessment unless the person—

(a)appears to the supervisory body to be suitable to carry out the assessment (having regard, in particular, to the type of assessment and the person to be assessed), and

(b)is eligible to carry out the assessment.

(3)Regulations may make provision about the selection, and eligibility, of persons to carry out assessments under this Schedule.

(4)Sub-paragraphs (5) and (6) apply if two or more assessments are to be obtained for the purposes of the relevant procedure.

(5)In a case where the assessments to be obtained include a mental health assessment and a best interests assessment, the supervisory body must not select the same person to carry out both assessments.

(6)Except as prohibited by sub-paragraph (5), the supervisory body may select the same person to carry out any number of the assessments which the person appears to be suitable, and is eligible, to carry out.

130(1)This paragraph applies to regulations under paragraph 129(3).E+W

(2)The regulations may make provision relating to a person's—

(a)qualifications,

(b)skills,

(c)training,

(d)experience,

(e)relationship to, or connection with, the relevant person or any other person,

(f)involvement in the care or treatment of the relevant person,

(g)connection with the supervisory body, or

(h)connection with the relevant hospital or care home, or with any other establishment or undertaking.

(3)The provision that the regulations may make in relation to a person's training may provide for particular training to be specified by the appropriate authority otherwise than in the regulations.

(4)In sub-paragraph (3) the “appropriate authority” means—

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

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

(5)The regulations may make provision requiring a person to be insured in respect of liabilities that may arise in connection with the carrying out of an assessment.

(6)In relation to cases where two or more assessments are to be obtained for the purposes of the relevant procedure, the regulations may limit the number, kind or combination of assessments which a particular person is eligible to carry out.

(7)Sub-paragraphs (2) to (6) do not limit the generality of the provision that may be made in the regulations.

Examination and copying of recordsE+W

131An assessor may, at all reasonable times, examine and take copies of—E+W

(a)any health record,

(b)any record of, or held by, a local authority and compiled in accordance with a social services function, and

(c)any record held by a person registered under Part 2 of the Care Standards Act 2000 [F54or Chapter 2 of Part 1 of the Health and Social Care Act 2008]F54,

which the assessor considers may be relevant to the assessment which is being carried out.

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Amendments (Textual)

RepresentationsE+W

132In carrying out an assessment under this Schedule, the assessor must take into account any information given, or submissions made, by any of the following—E+W

(a)the relevant person's representative;

(b)any section 39A IMCA;

(c)any section 39C IMCA;

(d)any section 39D IMCA.

Assessments to stop if any comes to negative conclusionE+W

133(1)This paragraph applies if an assessment under this Schedule comes to the conclusion that the relevant person does not meet one of the qualifying requirements.E+W

(2)This Schedule does not require the supervisory body to secure that any other assessments under this Schedule are carried out in relation to the relevant procedure.

(3)The supervisory body must give notice to any assessor who is carrying out another assessment in connection with the relevant procedure that they are to cease carrying out that assessment.

(4)If an assessor receives such notice, this Schedule does not require the assessor to continue carrying out that assessment.

Duty to keep records and give copiesE+W

134(1)This paragraph applies if an assessor has carried out an assessment under this Schedule (whatever conclusions the assessment has come to).E+W

(2)The assessor must keep a written record of the assessment.

(3)As soon as practicable after carrying out the assessment, the assessor must give copies of the assessment to the supervisory body.

135(1)This paragraph applies to the supervisory body if they are given a copy of an assessment under this Schedule.E+W

(2)The supervisory body must give copies of the assessment to all of the following—

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

(b)the relevant person;

(c)any section 39A IMCA;

(d)the relevant person's representative.

(3)If—

(a)the assessment is obtained in relation to a request for a standard authorisation, and

(b)the supervisory body are required by paragraph 50(1) to give the standard authorisation,

the supervisory body must give the copies of the assessment when they give copies of the authorisation in accordance with paragraph 57.

(4)If—

(a)the assessment is obtained in relation to a request for a standard authorisation, and

(b)the supervisory body are prohibited by paragraph 50(2) from giving the standard authorisation,

the supervisory body must give the copies of the assessment when they give notice in accordance with paragraph 58.

(5)If the assessment is obtained in connection with the review of a standard authorisation, the supervisory body must give the copies of the assessment when they give notice in accordance with paragraph 120.

136(1)This paragraph applies to the supervisory body if—E+W

(a)they are given a copy of a best interests assessment, and

(b)the assessment includes, in accordance with paragraph 44(2), a statement that it appears to the assessor that there is an unauthorised deprivation of liberty.

(2)The supervisory body must notify all of the persons listed in sub-paragraph (3) that the assessment includes such a statement.

(3)Those persons are—

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

(b)the relevant person;

(c)any section 39A IMCA;

(d)any interested person consulted by the best interests assessor.

(4)The supervisory body must comply with this paragraph when (or at some time before) they comply with paragraph 135.

Part 10 E+WRelevant person's representative

The representativeE+W

137In this Schedule the relevant person's representative is the person appointed as such in accordance with this Part.E+W

138(1)Regulations may make provision about the selection and appointment of representatives.E+W

(2)In this Part such regulations are referred to as “appointment regulations”.

Supervisory body to appoint representativeE+W

139(1)The supervisory body must appoint a person to be the relevant person's representative as soon as practicable after a standard authorisation is given.E+W

(2)The supervisory body must appoint a person to be the relevant person's representative if a vacancy arises whilst a standard authorisation is in force.

(3)Where a vacancy arises, the appointment under sub-paragraph (2) is to be made as soon as practicable after the supervisory body becomes aware of the vacancy.

140(1)The selection of a person for appointment under paragraph 139 must not be made unless it appears to the person making the selection that the prospective representative would, if appointed—E+W

(a)maintain contact with the relevant person,

(b)represent the relevant person in matters relating to or connected with this Schedule, and

(c)support the relevant person in matters relating to or connected with this Schedule.

141(1)Any appointment of a representative for a relevant person is in addition to, and does not affect, any appointment of a donee or deputy.E+W

(2)The functions of any representative are in addition to, and do not affect—

(a)the authority of any donee,

(b)the powers of any deputy, or

(c)any powers of the court.

Appointment regulationsE+W

142Appointment regulations may provide that the procedure for appointing a representative may begin at any time after a request for a standard authorisation is made (including a time before the request has been disposed of).E+W

143(1)Appointment regulations may make provision about who is to select a person for appointment as a representative.E+W

(2)But regulations under this paragraph may only provide for the following to make a selection—

(a)the relevant person, if he has capacity in relation to the question of which person should be his representative;

(b)a donee of a lasting power of attorney granted by the relevant person, if it is within the scope of his authority to select a person;

(c)a deputy, if it is within the scope of his authority to select a person;

(d)a best interests assessor;

(e)the supervisory body.

(3)Regulations under this paragraph may provide that a selection by the relevant person, a donee or a deputy is subject to approval by a best interests assessor or the supervisory body.

(4)Regulations under this paragraph may provide that, if more than one selection is necessary in connection with the appointment of a particular representative—

(a)the same person may make more than one selection;

(b)different persons may make different selections.

(5)For the purposes of this paragraph a best interests assessor is a person carrying out a best interests assessment in connection with the standard authorisation in question (including the giving of that authorisation).

144(1)Appointment regulations may make provision about who may, or may not, be—E+W

(a)selected for appointment as a representative, or

(b)appointed as a representative.

(2)Regulations under this paragraph may relate to any of the following matters—

(a)a person's age;

(b)a person's suitability;

(c)a person's independence;

(d)a person's willingness;

(e)a person's qualifications.

145Appointment regulations may make provision about the formalities of appointing a person as a representative.E+W

146In a case where a best interests assessor is to select a person to be appointed as a representative, appointment regulations may provide for the variation of the assessor's duties in relation to the assessment which he is carrying out.E+W

Monitoring of representativesE+W

147Regulations may make provision requiring the managing authority of the relevant hospital or care home to—E+W

(a)monitor, and

(b)report to the supervisory body on,

the extent to which a representative is maintaining contact with the relevant person.

TerminationE+W

148Regulations may make provision about the circumstances in which the appointment of a person as the relevant person's representative ends or may be ended.E+W

149Regulations may make provision about the formalities of ending the appointment of a person as a representative.E+W

Suspension of representative's functionsE+W

150(1)Regulations may make provision about the circumstances in which functions exercisable by, or in relation to, the relevant person's representative (whether under this Schedule or not) may be—E+W

(a)suspended, and

(b)if suspended, revived.

(2)The regulations may make provision about the formalities for giving effect to the suspension or revival of a function.

(3)The regulations may make provision about the effect of the suspension or revival of a function.

Payment of representativeE+W

151Regulations may make provision for payments to be made to, or in relation to, persons exercising functions as the relevant person's representative.E+W

Regulations under this PartE+W

152The provisions of this Part which specify provision that may be made in regulations under this Part do not affect the generality of the power to make such regulations.E+W

Effect of appointment of section 39C IMCAE+W

153Paragraphs 159 and 160 make provision about the exercise of functions by, or towards, the relevant person's representative during periods when—E+W

(a)no person is appointed as the relevant person's representative, but

(b)a person is appointed as a section 39C IMCA.

Part 11 E+WIMCAs

Application of PartE+W

154This Part applies for the purposes of this Schedule.E+W

The IMCAsE+W

155A section 39A IMCA is an independent mental capacity advocate appointed under section 39A.E+W

156A section 39C IMCA is an independent mental capacity advocate appointed under section 39C.E+W

157A section 39D IMCA is an independent mental capacity advocate appointed under section 39D.E+W

158An IMCA is a section 39A IMCA or a section 39C IMCA or a section 39D IMCA.E+W

Section 39C IMCA: functionsE+W

159(1)This paragraph applies if, and for as long as, there is a section 39C IMCA.E+W

(2)In the application of the relevant provisions, references to the relevant person's representative are to be read as references to the section 39C IMCA.

(3)But sub-paragraph (2) does not apply to any function under the relevant provisions for as long as the function is suspended in accordance with provision made under Part 10.

(4)In this paragraph and paragraph 160 the relevant provisions are—

(a)paragraph 102(3)(b) (request for review under Part 8);

(b)paragraph 108(1)(b) (notice of review under Part 8);

(c)paragraph 120(1)(c) (notice of outcome of review under Part 8).

160(1)This paragraph applies if—E+W

(a)a person is appointed as the relevant person's representative, and

(b)a person accordingly ceases to hold an appointment as a section 39C IMCA.

(2)Where a function under a relevant provision has been exercised by, or towards, the section 39C IMCA, there is no requirement for that function to be exercised again by, or towards, the relevant person's representative.

Section 39A IMCA: restriction of functionsE+W

161(1)This paragraph applies if—E+W

(a)there is a section 39A IMCA, and

(b)a person is appointed under Part 10 to be the relevant person's representative (whether or not that person, or any person subsequently appointed, is currently the relevant person's representative).

(2)The duties imposed on, and the powers exercisable by, the section 39A IMCA do not apply.

(3)The duties imposed on, and the powers exercisable by, any other person do not apply, so far as they fall to be performed or exercised towards the section 39A IMCA.

(4)But sub-paragraph (2) does not apply to any power of challenge exercisable by the section 39A IMCA.

(5)And sub-paragraph (3) does not apply to any duty or power of any other person so far as it relates to any power of challenge exercisable by the section 39A IMCA.

(6)Before exercising any power of challenge, the section 39A IMCA must take the views of the relevant person's representative into account.

(7)A power of challenge is a power to make an application to the court to exercise its jurisdiction under section 21A in connection with the giving of the standard authorisation.

Part 12 E+WMiscellaneous

Monitoring of operation of ScheduleE+W

162(1)Regulations may make provision for, and in connection with, requiring one or more prescribed bodies to monitor, and report on, the operation of this Schedule in relation to England.E+W

(2)The regulations may, in particular, give a prescribed body authority to do one or more of the following things—

(a)to visit hospitals and care homes;

(b)to visit and interview persons accommodated in hospitals and care homes;

(c)to require the production of, and to inspect, records relating to the care or treatment of persons.

(3)Prescribed” means prescribed in regulations under this paragraph.

163(1)Regulations may make provision for, and in connection with, enabling the National Assembly for Wales to monitor, and report on, the operation of this Schedule in relation to Wales.E+W

(2)The National Assembly may direct one or more persons or bodies to carry out the Assembly's functions under regulations under this paragraph.

Disclosure of informationE+W

164(1)Regulations may require either or both of the following to disclose prescribed information to prescribed bodies—E+W

(a)supervisory bodies;

(b)managing authorities of hospitals or care homes.

(2)Prescribed” means prescribed in regulations under this paragraph.

(3)Regulations under this paragraph may only prescribe information relating to matters with which this Schedule is concerned.

Directions by National Assembly in relation to supervisory functionsE+W

165(1)The National Assembly for Wales may direct a Local Health Board to exercise in relation to its area any supervisory functions which are specified in the direction.E+W

(2)Directions under this paragraph must not preclude the National Assembly from exercising the functions specified in the directions.

(3)In this paragraph “supervisory functions” means functions which the National Assembly have as supervisory body, so far as they are exercisable in relation to hospitals (whether NHS or independent hospitals, and whether in Wales or England).

166(1)This paragraph applies where, under paragraph 165, a Local Health Board (“the specified LHB”) is directed to exercise supervisory functions (“delegated functions”).E+W

(2)The National Assembly for Wales may give directions to the specified LHB about the Board's exercise of delegated functions.

(3)The National Assembly may give directions for any delegated functions to be exercised, on behalf of the specified LHB, by a committee, sub-committee or officer of that Board.

(4)The National Assembly may give directions providing for any delegated functions to be exercised by the specified LHB jointly with one or more other Local Health Boards.

(5)Where, under sub-paragraph (4), delegated functions are exercisable jointly, the National Assembly may give directions providing for the functions to be exercised, on behalf of the Local Health Boards in question, by a joint committee or joint sub-committee.

167(1)Directions under paragraph 165 must be given in regulations.E+W

(2)Directions under paragraph 166 may be given—

(a)in regulations, or

(b)by instrument in writing.

168The power under paragraph 165 or paragraph 166 to give directions includes power to vary or revoke directions given under that paragraph.E+W

NoticesE+W

169Any notice under this Schedule must be in writing.E+W

RegulationsE+W

170(1)This paragraph applies to all regulations under this Schedule, except regulations under paragraph 162, 163, 167 or 183.E+W

(2)It is for the Secretary of State to make such regulations in relation to authorisations under this Schedule which relate to hospitals and care homes situated in England.

(3)It is for the National Assembly for Wales to make such regulations in relation to authorisations under this Schedule which relate to hospitals and care homes situated in Wales.

171It is for the Secretary of State to make regulations under paragraph 162.E+W

172It is for the National Assembly for Wales to make regulations under paragraph 163 or 167.E+W

173(1)This paragraph applies to regulations under paragraph 183.E+W

(2)It is for the Secretary of State to make such regulations in relation to cases where a question as to the ordinary residence of a person is to be determined by the Secretary of State.

(3)It is for the National Assembly for Wales to make such regulations in relation to cases where a question as to the ordinary residence of a person is to be determined by the National Assembly.

Part 13 E+WInterpretation

IntroductionE+W

174This Part applies for the purposes of this Schedule.E+W

Hospitals and their managing authoritiesE+W

175(1)Hospital” means—E+W

(a)an NHS hospital, or

(b)an independent hospital.

(2)NHS hospital” means—

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

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

[F55(3)Independent hospital”—

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

(b)in relation to Wales, means a hospital as defined by section 2 of the Care Standards Act 2000 that is not an NHS hospital.F55]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

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

(a)if the hospital—

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

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

the Primary Care Trust, Strategic Health Authority, Local Health Board or Special Health Authority responsible for the administration of the hospital;

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

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

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

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

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

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

[F56177Managing authority”, in relation to an independent hospital, means—E+W

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

(b)in relation to Wales, the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the hospital.F56]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Care homes and their managing authoritiesE+W

178Care home” has the meaning given by section 3 of the Care Standards Act 2000.E+W

[F57179Managing authority”, in relation to a care home, means—E+W

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

(b)in relation to Wales, the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the care home.F57]

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Annotations are used to give authority for changes and other effects on the legislation you are viewing and to convey editorial information. They appear at the foot of the relevant provision or under the associated heading. Annotations are categorised by annotation type, such as F-notes for textual amendments and I-notes for commencement information (a full list can be found in the Editorial Practice Guide). Each annotation is identified by a sequential reference number. For F-notes, M-notes and X-notes, the number also appears in bold superscript at the relevant location in the text. All annotations contain links to the affecting legislation.

Amendments (Textual)

Supervisory bodies: hospitalsE+W

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

(2)If a Primary Care Trust commissions the relevant care or treatment, that Trust is the supervisory body.

(3)If the National Assembly for Wales or a Local Health Board commission the relevant care or treatment, the National Assembly are the supervisory body.

(4)In any other case, the supervisory body are the Primary Care Trust for the area in which the relevant hospital is situated.

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

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

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

(3)But if a Primary Care Trust commissions the relevant care or treatment, that Trust is the supervisory body.

Supervisory bodies: care homesE+W

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

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

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

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

(a)the council of a county;

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

(c)the council of a London borough;

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

(e)the Council of the Isles of Scilly.

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

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

183(1)Subsections (5) and (6) of section 24 of the National Assistance Act 1948 (deemed place of ordinary residence) apply to any determination of where a person is ordinarily resident for the purposes of paragraph 182 as those subsections apply to such a determination for the purposes specified in those subsections.E+W

(2)In the application of section 24(6) of the 1948 Act by virtue of sub–paragraph (1), section 24(6) is to be read as if it referred to a hospital vested in a Local Health Board as well as to hospitals vested in the Secretary of State and the other bodies mentioned in section 24(6).

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

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

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

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

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

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

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

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

Same body managing authority and supervisory bodyE+W

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

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

(b)the supervisory body.

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

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

Interested personsE+W

185Each of the following is an interested person—E+W

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

(b)where the relevant person and another person of the opposite sex are not married to each other but are living together as husband and wife: the other person;

(c)where the relevant person and another person of the same sex are not civil partners of each other but are living together as if they were civil partners: the other person;

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

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

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

(g)the relevant person's grandparents;

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

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

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

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

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

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

(b)cannot reasonably ascertain it.

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

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

Section 9

SCHEDULE 1E+W+S+N.I.Lasting powers of attorney: formalities

Part 1 E+W+S+N.I.Making instruments

General requirements as to making instrumentsE+W+S+N.I.

1(1)An instrument is not made in accordance with this Schedule unless—E+W+S+N.I.

(a)it is in the prescribed form,

(b)it complies with paragraph 2, and

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

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

(a)the instrument relates to personal welfare or to property and affairs (or to both);

(b)only one or more than one donee is to be appointed (and if more than one, whether jointly or jointly and severally).

(3)In this Schedule—

(a)prescribed” means prescribed by regulations, and

(b)regulations” means regulations made for the purposes of this Schedule by the Lord Chancellor.

Requirements as to content of instrumentsE+W+S+N.I.

2(1)The instrument must include—E+W+S+N.I.

(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 he—

(i)has read the prescribed information or a prescribed part of it (or has had it read to him), and

(ii)intends the authority conferred under the instrument to include authority to make decisions on his behalf in circumstances where he 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 he wishes to be notified of any such application,

(d)a statement by the donee (or, if more than one, each of them) to the effect that he—

(i)has read the prescribed information or a prescribed part of it (or has had it read to him), and

(ii)understands the duties imposed on a donee of a lasting power of attorney under sections 1 (the principles) and 4 (best interests), and

(e)a certificate by a person of a prescribed description that, in his 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 under 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—

(a)prescribe a maximum number of named persons;

(b)provide that, where the instrument includes a statement under sub-paragraph (1)(c)(ii), two persons of a prescribed description must each give a certificate under sub-paragraph (1)(e).

(3)The persons who may be named persons do not include a person who is appointed as donee under the instrument.

(4)In this Schedule, “named person” means a person named under sub-paragraph (1)(c).

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

(a)must be made in the prescribed form, and

(b)must include any prescribed information.

(6)The certificate may not be given by a person appointed as donee under the instrument.

Failure to comply with prescribed formE+W+S+N.I.

3(1)If an instrument differs in an immaterial respect in form or mode of expression from the prescribed form, it is to be treated by the Public Guardian as sufficient in point of form and expression.E+W+S+N.I.

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

Part 2 E+W+S+N.I.Registration

Applications and procedure for registrationE+W+S+N.I.

4(1)An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney—E+W+S+N.I.

(a)must be made in the prescribed form, and

(b)must include any prescribed information.

(2)The application may be made—

(a)by the donor,

(b)by the donee or donees, or

(c)if the instrument appoints two or more donees to act jointly and severally in respect of any matter, by any of the donees.

(3)The application must be accompanied by—

(a)the instrument, and

(b)any fee provided for under section 58(4)(b).

(4)A person who, in an application for registration, makes a statement which he knows to be false in a material particular is guilty of an offence and is liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 2 years or a fine or both.

5Subject to paragraphs 11 to 14, the Public Guardian must register the instrument as a lasting power of attorney at the end of the prescribed period.E+W+S+N.I.

Notification requirementsE+W+S+N.I.

6(1)A donor about to make an application under paragraph 4(2)(a) must notify any named persons that he is about to do so.E+W+S+N.I.

(2)The donee (or donees) about to make an application under paragraph 4(2)(b) or (c) must notify any named persons that he is (or they are) about to do so.

7As soon as is practicable after receiving an application by the donor under paragraph 4(2)(a), the Public Guardian must notify the donee (or donees) that the application has been received.E+W+S+N.I.

8(1)As soon as is practicable after receiving an application by a donee (or donees) under paragraph 4(2)(b), the Public Guardian must notify the donor that the application has been received.E+W+S+N.I.

(2)As soon as is practicable after receiving an application by a donee under paragraph 4(2)(c), the Public Guardian must notify—

(a)the donor, and

(b)the donee or donees who did not join in making the application,

that the application has been received.

9(1)A notice under paragraph 6 must be made in the prescribed form.E+W+S+N.I.

(2)A notice under paragraph 6, 7 or 8 must include such information, if any, as may be prescribed.

Power to dispense with notification requirementsE+W+S+N.I.

10The court may—E+W+S+N.I.

(a)on the application of the donor, dispense with the requirement to notify under paragraph 6(1), or

(b)on the application of the donee or donees concerned, dispense with the requirement to notify under paragraph 6(2),

if satisfied that no useful purpose would be served by giving the notice.

Instrument not made properly or containing ineffective provisionE+W+S+N.I.

11(1)If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, he must not register the instrument unless the court directs him to do so.E+W+S+N.I.

(2)Sub-paragraph (3) applies if it appears to the Public Guardian that the instrument 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.

(3)The Public Guardian—

(a)must apply to the court for it to determine the matter under section 23(1), and

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

(4)Sub-paragraph (5) applies if the court determines under section 23(1) (whether or not on an application by the Public Guardian) that the instrument 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.

(5)The court must—

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

(b)direct him not to register the instrument.

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

Deputy already appointedE+W+S+N.I.

12(1)Sub-paragraph (2) applies if it appears to the Public Guardian that—E+W+S+N.I.

(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 the court directs him to do so.

Objection by donee or named personE+W+S+N.I.

13(1)Sub-paragraph (2) applies if a donee or a named person—E+W+S+N.I.

(a)receives a notice under paragraph 6, 7 or 8 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 an event mentioned in section 13(3) or (6)(a) to (d) has occurred which has revoked the instrument.

(2)If the Public Guardian is satisfied that the ground for making the objection is established, he 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 donee or a named person—

(a)receives a notice under paragraph 6, 7 or 8 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 the court directs him to do so.

Objection by donorE+W+S+N.I.

14(1)This paragraph applies if the donor—E+W+S+N.I.

(a)receives a notice under paragraph 8 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 the donee or, if more than one, any of them—

(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 registrationE+W+S+N.I.

15Where an instrument is registered under this Schedule, the Public Guardian must give notice of the fact in the prescribed form to—E+W+S+N.I.

(a)the donor, and

(b)the donee or, if more than one, each of them.

Evidence of registrationE+W+S+N.I.

16(1)A document purporting to be an office copy of an instrument registered under this Schedule is, in any part of the United Kingdom, evidence of—E+W+S+N.I.

(a)the contents of the instrument, and

(b)the fact that it has been registered.

(2)Sub-paragraph (1) is without prejudice to—

(a)section 3 of the Powers of Attorney Act 1971 (c. 27) (proof by certified copy), and

(b)any other method of proof authorised by law.

Part 3 E+W+S+N.I.Cancellation of registration and notification of severance

17(1)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—E+W+S+N.I.

(a)as a result of the donor's bankruptcy, or

(b)on the occurrence of an event mentioned in section 13(6)(a) to (d).

(2)If the Public Guardian cancels the registration of an instrument he must notify—

(a)the donor, and

(b)the donee or, if more than one, each of them.

18The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—E+W+S+N.I.

(a)determines under section 22(2)(a) that a requirement for creating the power was not met,

(b)determines under section 22(2)(b) that the power has been revoked or has otherwise come to an end, or

(c)revokes the power under section 22(4)(b) (fraud etc.).

19(1)Sub-paragraph (2) applies if the court determines under section 23(1) that a lasting power of attorney contains a provision which—E+W+S+N.I.

(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 him to cancel the registration of the instrument as a lasting power of attorney.

20On 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.E+W+S+N.I.

Part 4 E+W+S+N.I.Records of alterations in registered powers

Partial revocation or suspension of power as a result of bankruptcyE+W+S+N.I.

21If in the case of a registered instrument it appears to the Public Guardian that under section 13 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.E+W+S+N.I.

Termination of appointment of donee which does not revoke powerE+W+S+N.I.

22If in the case of a registered instrument it appears to the Public Guardian that an event has occurred—E+W+S+N.I.

(a)which has terminated the appointment of the donee, but

(b)which has not revoked the instrument,

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

Replacement of doneeE+W+S+N.I.

23If in the case of a registered instrument it appears to the Public Guardian that the donee has been replaced under the terms of the instrument the Public Guardian must attach to the instrument a note to that effect.E+W+S+N.I.

Severance of ineffective provisionsE+W+S+N.I.

24If 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 it a note to that effect.E+W+S+N.I.

Notification of alterationsE+W+S+N.I.

25If the Public Guardian attaches a note to an instrument under paragraph 21, 22, 23 or 24 he must give notice of the note to the donee or donees of the power (or, as the case may be, to the other donee or donees of the power).E+W+S+N.I.

[F58SCHEDULE 1AE+WPersons ineligible to be deprived of liberty by this Act

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Amendments (Textual)

Part 1 E+WIneligible persons

ApplicationE+W

1This Schedule applies for the purposes of—E+W

(a)section 16A, and

(b)paragraph 17 of Schedule A1.

Determining ineligibilityE+W

2A person (“P”) is ineligible to be deprived of liberty by this Act (“ineligible”) if—E+W

(a)P falls within one of the cases set out in the second column of the following table, and

(b)the corresponding entry in the third column of the table —or the provision, or one of the provisions, referred to in that entry — provides that he is ineligible.

Status of PDetermination of ineligibility
Case A

P is—

(a)

subject to the hospital treatment regime, and

(b)

detained in a hospital under that regime.

P is ineligible.
Case B

P is—

(a)

subject to the hospital treatment regime, but

(b)

not detained in a hospital under that regime.

See paragraphs 3 and 4.
Case CP is subject to the community treatment regime.See paragraphs 3 and 4.
Case DP is subject to the guardianship regime.See paragraphs 3 and 5.
Case E

P is—

(a)

within the scope of the Mental Health Act, but

(b)

not subject to any of the mental health regimes.

See paragraph 5.

Authorised course of action not in accordance with regimeE+W

3(1)This paragraph applies in cases B, C and D in the table in paragraph 2.