C1Part 1Persons who lack capacity

Annotations:
Modifications etc. (not altering text)

Independent mental capacity advocate service

39DPerson subject to Schedule A1 without paid representative

F11

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—

    1. a

      the right to apply to court, and

    2. 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.