Mental Capacity Act 2005 (c. 9)

Part 1 E+W Persons who lack capacity

Modifications etc. (not altering text)

C1 Pt. 1 applied (1.12.2017) by The Court of Protection Rules 2017 (S.I. 2017/1035), rules 23.3, 24.6(1)

Preliminary E+W

4B [F1 Deprivation of liberty necessary for life-sustaining treatment etc][F1 Deprivation of liberty necessary for life-sustaining treatment or vital act] E+W

[F1 (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.]

[F1 (1) If Conditions 1 to 4 are met, D is authorised to take steps which deprive P of liberty.

(2) Condition 1 is that the steps—

(a) are wholly or partly for the purpose of giving P life-sustaining treatment or doing any vital act, or

(b) consist wholly or partly of giving P life-sustaining treatment or doing any vital act.

(3) 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.

(4) Condition 2 is that the steps are necessary in order to give the life-sustaining treatment or do the vital act.

(5) Condition 3 is that D reasonably believes that P lacks capacity to consent to D taking the steps.

(6) Condition 4 is that—

(a) subsection (7) applies, or

(b) there is an emergency.

(7) This subsection applies if—

(a) a decision relevant to whether D is authorised to deprive P of liberty is being sought from the court, or

(b) a responsible body is carrying out functions under Schedule AA1 with a view to determining whether to authorise arrangements that give rise to a deprivation of P’s liberty.

(8) In subsection (7) it does not matter—

(a) whether the decision mentioned in paragraph (a) relates to the steps mentioned in subsection (1);

(b) whether the arrangements mentioned in paragraph (b) include those steps.

(9) There is an emergency if D reasonably believes that—

(a) there is an urgent need to take the steps mentioned in subsection (1) in order to give the life-sustaining treatment or do the vital act, and

(b) it is not reasonably practicable before taking those steps—

(i) to make an application for P to be detained under Part 2 of the Mental Health Act,

(ii) to make an application within subsection (7)(a), or

(iii) to secure that action within subsection (7)(b) is taken.]

Textual Amendments

F1 S. 4B substituted (16.5.2019 for specified purposes) by Mental Capacity (Amendment) Act 2019 (c. 18), ss. 2, 6(3)