Part 1

Persons who lack capacity

Miscellaneous and supplementary

Codes of practice
42
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
for the guidance of persons exercising functions under Schedule A1,
fb
for the guidance of representatives appointed under Part 10 of Schedule A1,
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.
2
The Lord Chancellor may from time to time revise a code.
3
The Lord Chancellor may delegate the preparation 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
in the exercise of functions under Schedule A1,
db
as a representative appointed under Part 10 of Schedule A1,
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.
S. 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)
S. 42(1)(fa)(fb) inserted (1.4.2008) by Mental Health Act 2007 (c. 12), ss. 50, 56, Sch. 9 para. 8(2); S.I. 2008/745, art. 4(b)
S. 42(4)(da)(db) inserted (1.4.2008) by Mental Health Act 2007 (c. 12), ss. 50, 56, Sch. 9 para. 8(3); S.I. 2008/745, art. 4(b)
Pt. 1 applied (1.12.2017) by The Court of Protection Rules 2017 (S.I. 2017/1035), rules 23.3, 24.6(1)