- Latest available (Revised)
- Original (As enacted)
Mental Capacity Act 2005, Section 35 is up to date with all changes known to be in force on or before 08 September 2024. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations.
Revised legislation carried on this site may not be fully up to date. Changes and effects are recorded by our editorial team in lists which can be found in the ‘Changes to Legislation’ area. Where those effects have yet to be applied to the text of the legislation by the editorial team they are also listed alongside the legislation in the affected provisions. Use the ‘more’ link to open the changes and effects relevant to the provision you are viewing.
Whole provisions yet to be inserted into this Act (including any effects on those provisions):
(1)The [F1responsible authority] must make such arrangements as it considers reasonable to enable persons (“independent mental capacity advocates”) to be [F2available to represent and support persons to whom acts or decisions proposed under sections 37, 38 and 39 relate or persons who fall within section 39A, 39C or 39D.] [F2available to—
(a)represent and support persons to whom acts or decisions proposed under sections 37, 38 and 39 relate,
(b)represent and support cared-for persons where paragraph 42 of Schedule AA1 applies, and
(c)support appropriate persons where paragraph 43 of Schedule AA1 applies.]
(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 [F3responsible 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) [F4, Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 (anaw 2)],
which the person holding the record considers may be relevant to the independent mental capacity advocate's investigation.
[F5(6A) In subsections (1) and (4), “ the responsible authority ” means—
(a)in relation to the provision of the services of independent mental capacity advocates in the area of a local authority in England, that local authority, and
(b)in relation to the provision of the services of independent mental capacity advocates in Wales, the Welsh Ministers.]
[F5(6B) In subsection (6A)(a), “ local authority ” has the meaning given in section 64(1) except that it does not include the council of a county or county borough in Wales. ]
(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.
Textual Amendments
F1Words in s. 35(1) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 134(a); S.I. 2013/160, art. 2(2) (with arts. 7-9)
F2Words in s. 35(1) substituted (16.5.2019 for specified purposes) by Mental Capacity (Amendment) Act 2019 (c. 18), s. 6(3), Sch. 2 para. 3
F3Words in s. 35(4) substituted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 134(b); S.I. 2013/160, art. 2(2) (with arts. 7-9)
F4Words in s. 35(6)(b)(iii) substituted (2.4.2018) by The Regulation and Inspection of Social Care (Wales) Act 2016 (Consequential Amendments) Regulations 2018 (S.I. 2018/195), regs. 2(1), 28
F5S. 35(6A)(6B) inserted (1.4.2013) by Health and Social Care Act 2012 (c. 7), s. 306(4), Sch. 5 para. 134(c); S.I. 2013/160, art. 2(2) (with arts. 7-9)
Modifications etc. (not altering text)
C1S. 35 extended (E.) (1.11.2006 for certain purposes and otherwise 1.4.2007) by The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Expansion of Role) Regulations 2006 (S.I. 2006/2883), regs. 1(2), 2-4
Commencement Information
I1S. 35 wholly in force at 1.10.2007; s. 35 not in force at Royal Assent see s. 68(1)-(3); s. 35 in force for E. at 1.11.2006 for certain purposes and otherwise 1.4.2007 by S.I. 2006/2814, art. 5; s. 35 in force at 1.10.2007 for W. by S.I. 2007/856, art. 5
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download.
Would you like to continue?
The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.
Would you like to continue?
Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.
Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.
Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.
Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.
Text created by the government department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Public Acts except Appropriation, Consolidated Fund, Finance and Consolidation Acts.
Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:
This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.
Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:
Click 'View More' or select 'More Resources' tab for additional information including: