The Mental Capacity (Deprivation of Liberty: Assessments, Standard Authorisations and Disputes about Residence) (Wales) Regulations 2009

Explanatory Note

(This note is not part of the Regulations)

1.  The Mental Capacity Act 2005 (“the Act”) provides for the deprivation of liberty of people lacking capacity to consent to the arrangements made for their care or treatment, who are receiving care or treatment in care homes and hospitals, where authorisation under section 4A of and Schedule A1 to the Act (“Schedule A1”) exists.

2.  Where it appears that a person who lacks capacity is detained, or is likely to be detained, in a care home or hospital, the managing authority of the care home or hospital must request an authorisation from the supervisory body. “Managing authority” is defined in paragraphs 128, 180 and 182 of Schedule A1. In the case of a care home, the supervisory body will usually be the local authority in which the person is ordinarily resident and in the case of a hospital, it will usually be the relevant Local Health Board for the area in which the hospital is situated or the Local Health Board that commissions the care or treatment.

3.  On receiving a request for standard authorisation a supervisory body is required to arrange for various assessments to be carried out in relation to the individual concerned in order to determine whether it is appropriate to grant the authorisation. The supervisory body must select people to carry out those assessments in accordance with paragraph 129 of Schedule A1 and may only select people who are eligible in accordance with these Regulations.

4.  Regulations 3 to 8, together with the Act, provide the eligibility requirements for people who carry out the assessments. These Regulations require that—

(a) the supervisory body is satisfied that all assessors are insured, have appropriate skills and have undergone a Criminal Record Bureau check (regulation 3);

(b) mental health assessments may only be carried out by a person approved under section 12 of the Mental Health Act 1983 (“the Mental Health Act”) or registered medical practitioners who have relevant experience in diagnosis or treatment of mental disorder (regulation 4);

(c) best interests assessments can only be carried out by a social worker, nurse, occupational therapist or psychologist and the supervisory body must be satisfied that they have the skills required to make such assessments (regulation 5);

(d) mental capacity assessments and eligibility assessments may only be carried out by people who are eligible to carry out a mental health assessment or a best interests assessment (regulation 6);

(e) the assessor does not have a financial interest in the care of the person they are assessing or a relative of that person. (regulation 7);

(f) the best interests assessor must not be involved in the care or treatment, or in making decisions about the care or treatment, of the person he or she is assessing (regulation 8).

5.  Regulations 9, 10 and 11 contain provisions about the time limits in which assessments must be completed. Where a request for a standard authorisation is received—

(a) except in the case where the assessor is instructed before 30 April 2009, an assessor must complete the assessment within 21 days of being instructed, except that where there is an urgent authorisation it must be completed within 5 days (regulation 9);

(b) in the case of an assessment to decide whether there is an unauthorised deprivation of liberty, the assessment must be completed within 5 days (regulation 10);

(c) where the assessment is carried out before 30 April 2009 the assessment must be completed within 42 days (regulation 11).

6.  Regulation 12 provides that where the eligibility assessor and best interests assessor are not the same person the eligibility assessor must request relevant information from the best interests assessor.

7.  Regulation 13 specifies the information that must be provided by the managing authority when making a request for a standard authorisation.

8.  Regulations 14, 15 and 16 make provisions authorising local authorities to act as supervisory body in cases where there is dispute about the residence of the person who is the subject of the request for standard authorisation. Paragraph 183(3) of Schedule A1 to the Act provides that any question about ordinary residence in such cases is to be determined by Welsh Ministers.

9.  Regulation 15 provides that where a local authority disputes that it is the appropriate supervisory body the local authority who receives the request for standard authorisation must act as supervisory body until the question about the ordinary residence is determined. However if another local authority agrees to act as supervisory body then that local authority will be the supervisory body until the question is determined. When the question has been determined then the local authority identified as the supervisory body will become the supervisory body.

10.  Regulation 16 sets out the arrangements and where liability lies where the request for standard authorisation is transferred from one local authority to another.