The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008

EXPLANATORY NOTE

(This note is not part of the Regulations)

The Mental Capacity Act 2005 (“the Act”) provides for the deprivation of liberty of people who lack capacity to consent to arrangements proposed for their care in care homes and hospitals where authorisation under section 4A of and Schedule A1 to the Act (“Schedule A1”) exists.

Paragraph 139 of Schedule A1 requires that the supervisory body appoint a representative to a person in respect of whom a standard authorisation has been issued. Supervisory bodies are only able to appoint representatives who have been selected for that purpose. The role of the representative is to maintain contact with the person and to support and represent them in matters relating to their deprivation of liberty.

These Regulations provide for the selection and appointment of representatives and the circumstances in which they may be paid, by—

(a) detailing the eligibility requirements for appointment as a representative (regulation 3);

(b) enabling the best interests assessor to determine whether the person deprived, or potentially deprived of, liberty (“the relevant person”) has capacity to select a person to be their representative (regulation 4);

(c) enabling the relevant person to select a family member, friend or carer to be their representative, where they have capacity to make that decision (regulation 5);

(d) enabling a donee or deputy of a relevant person who lacks capacity to select a representative, to select a family member, friend, carer or him or herself to be the representative, where their scope of authority permits that (regulation 6);

(e) requiring that the best interests assessor confirms the eligibility for appointment of any selection made by a relevant person, donee or deputy. Where confirmation is given, the best interests assessor must recommend the selected person for appointment. Where confirmation cannot be given, the selector must be advised why that is the case and invited to make another selection (regulation 7);

(f) enabling the best interests assessor to select a relevant person’s family member, friend or carer as the representative when one is not, or cannot, be selected by the relevant person, a donee or a deputy (regulation 8);

(g) enabling the supervisory body to select a person in a professional capacity to be a representative where one cannot be selected from the relevant person’s family, friends or carers (regulation 9);

(h) requiring that the procedure for appointing a representative begin as soon as a best interests assessor is selected in relation to a request for a standard authorisation or as soon as an existing representative’s appointment terminates or is about to terminate (regulation 10);

(i) requiring that the supervisory body only appoints a person approved by the best interests assessor, unless such approval cannot be given (regulation 11);

(j) detailing the formalities of appointment and termination of appointment (regulations 12 to 14); and

(k) enabling the supervisory body to pay a person who has been selected to be a representative in a professional capacity (regulation 15).