Search Legislation

Mental Health Act 2007

Status:

This is the original version (as it was originally enacted).

Chapter 2Amendments to Mental Capacity Act 2005

49Independent mental capacity advocacy service: exceptions

For section 40 of the Mental Capacity Act 2005 (c. 9) (independent mental capacity advocacy service: exceptions) substitute—

40Exceptions

The duty imposed by section 37(3), 38(3) or (4) or 39(4) or (5) 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.

50Mental Capacity Act 2005: deprivation of liberty

(1)The Mental Capacity Act 2005 (c. 9) is amended as follows.

(2)After section 4 insert—

4ARestriction on deprivation of liberty

(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 etc

(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.

(3)After section 16 insert—

16ASection 16 powers: Mental Health Act patients etc

(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).

(4)Omit the following provisions (which make specific provision about deprivation of liberty)—

(a)section 6(5);

(b)section 11(6);

(c)section 20(13).

(5)Schedule 7 (which inserts the new Schedule A1 into the Mental Capacity Act 2005 (c. 9)) has effect.

(6)Schedule 8 (which inserts the new Schedule 1A into the Mental Capacity Act 2005) has effect.

(7)Schedule 9 (which makes other amendments to the Mental Capacity Act 2005 and to other Acts) has effect.

(8)In subsection (9)—

  • “GOWA 1998” means the Government of Wales Act 1998 (c. 38);

  • “GOWA 2006” means the Government of Wales Act 2006 (c. 32);

  • “initial period” has the same meaning as in Schedule 11 to GOWA 2006.

(9)If this Act is passed after the end of the initial period, the functions conferred on the National Assembly for Wales by virtue of any provision of this Part of this Act are to be treated for the purposes of Schedule 11 to GOWA 2006 as if they—

(a)had been conferred on the Assembly constituted by GOWA 1998 by an Act passed before the end of the initial period, and

(b)were exercisable by that Assembly immediately before the end of the initial period.

(10)If any function of making subordinate legislation conferred by virtue of any provision of this Part of this Act is transferred to the Welsh Ministers (whether by virtue of subsection (9) or otherwise)—

(a)paragraphs 34 and 35 of Schedule 11 to the Government of Wales Act 2006 do not apply; and

(b)subsections (11) and (12) apply instead.

(11)If a relevant statutory instrument contains regulations under paragraph 42(2)(b), 129, 163 or 164 of Schedule A1 to the Mental Capacity Act 2005 (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 the National Assembly for Wales.

(12)Subject to that, a relevant statutory instrument is subject to annulment in pursuance of a resolution of the National Assembly for Wales.

(13)In subsections (11) and (12) “relevant statutory instrument” means a statutory instrument containing subordinate legislation made in exercise of a function transferred as mentioned in subsection (10).

51Amendment to section 20(11) of Mental Capacity Act 2005

In section 20 of the Mental Capacity Act 2005 (c. 9) (restrictions on deputies), in subsection (11)(a), for “or” substitute “and”.

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

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

Close

Opening Options

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

Close

Explanatory Notes

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

More Resources

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

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

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

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