Search Legislation

Mental Capacity Act 2005

 Help about what version

What Version

 Help about advanced features

Advanced Features

Changes over time for: Section 42

 Help about opening options

Changes to legislation:

There are currently no known outstanding effects for the Mental Capacity Act 2005, Section 42. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.

42Codes of practiceE+W

This section has no associated Explanatory Notes

(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,

(fa)[F1for the guidance of persons exercising functions under Schedule A1,]

[F1for the guidance of persons exercising functions under Schedule AA1,]

(fb)[F1for the guidance of representatives appointed under Part 10 of Schedule A1,]

[F1for the guidance of appropriate persons within paragraph 42(5) of Schedule AA1,]

F2(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.

[F3(1A)Guidance about what kinds of arrangements for enabling the care or treatment of a person fall within paragraph 2(1)(b) of Schedule AA1 must be included in the code, or one of the codes, issued under subsection (1).]

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

[F4(2A)Before the end of each review period the Lord Chancellor must—

(a)review each code for the guidance of persons exercising functions under Schedule AA1, and

(b)lay a report of the review before Parliament.

But this does not affect the Lord Chancellor’s functions under subsection (2).

(2B)A review period is—

(a)in relation to the first review, the period of 3 years beginning with the day on which this subsection comes into force, and

(b)in relation to subsequent reviews, each period of 5 years beginning with the day on which the report of the previous review was laid before Parliament.]

(3)The Lord Chancellor may delegate the preparation[F5, review] 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,

(da)[F6in the exercise of functions under Schedule A1,]

[F6in the exercise of functions under Schedule AA1,]

(db)[F6as a representative appointed under Part 10 of Schedule A1,]

[F6as an appropriate person within paragraph 42(5) of Schedule AA1,]

F7(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.

Textual Amendments

F3S. 42(1A) inserted (16.5.2019 for specified purposes) by Mental Capacity (Amendment) Act 2019 (c. 18), ss. 4(2), 6(3)

F4S. 42(2A)(2B) inserted (16.5.2019 for specified purposes) by Mental Capacity (Amendment) Act 2019 (c. 18), ss. 4(3), 6(3)

F5Word in s. 42(3) inserted (16.5.2019 for specified purposes) by Mental Capacity (Amendment) Act 2019 (c. 18), ss. 4(4), 6(3)

Commencement Information

I1S. 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)

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

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

Would you like to continue?

You have chosen to open The Whole Act as a PDF

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

Would you like to continue?

You have chosen to open the Whole Act

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

Would you like to continue?

You have chosen to open Schedules only

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

Would you like to continue?

Close

Legislation is available in different versions:

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

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

Close

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

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

Close

Explanatory Notes

Text created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.

Close

More Resources

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

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

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

Close

More Resources

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

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

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

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