Part 1Persons who lack capacity

Independent mental capacity advocate service

35Appointment of independent mental capacity advocates

(1)

The appropriate authority must make such arrangements as it considers reasonable to enable persons (“independent mental capacity advocates”) to be available to represent and support persons to whom acts or decisions proposed under sections 37, 38 and 39 relate.

(2)

The appropriate authority may make regulations as to the appointment of independent mental capacity advocates.

(3)

The regulations may, in particular, provide—

(a)

that a person may act as an independent mental capacity advocate only in such circumstances, or only subject to such conditions, as may be prescribed;

(b)

for the appointment of a person as an independent mental capacity advocate to be subject to approval in accordance with the regulations.

(4)

In making arrangements under subsection (1), the appropriate authority must have regard to the principle that a person to whom a proposed act or decision relates should, so far as practicable, be represented and supported by a person who is independent of any person who will be responsible for the act or decision.

(5)

The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.

(6)

For the purpose of enabling him to carry out his functions, an independent mental capacity advocate—

(a)

may interview in private the person whom he has been instructed to represent, and

(b)

may, at all reasonable times, examine and take copies of—

(i)

any health record,

(ii)

any record of, or held by, a local authority and compiled in connection with a social services function, and

(iii)

any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14),

which the person holding the record considers may be relevant to the independent mental capacity advocate's investigation.

(7)

In this section, section 36 and section 37, “the appropriate authority” means—

(a)

in relation to the provision of the services of independent mental capacity advocates in England, the Secretary of State, and

(b)

in relation to the provision of the services of independent mental capacity advocates in Wales, the National Assembly for Wales.