Part 1Persons who lack capacity
Independent mental capacity advocate service
I139Provision of accommodation by local authority
1
This section applies if a local authority propose to make arrangements—
a
for the provision of residential accommodation for a person (“P”) who lacks capacity to agree to the arrangements, or
b
for a change in P's residential accommodation,
and are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for them to consult in determining what would be in P's best interests.
2
But this section applies only if the accommodation is to be provided in accordance with—
a
section 21 or 29 of the National Assistance Act 1948 (c. 29), or
b
section 117 of the Mental Health Act,
as the result of a decision taken by the local authority under section 47 of the National Health Service and Community Care Act 1990 (c. 19).
3
This section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.
4
Before making the arrangements, the local authority must instruct an independent mental capacity advocate to represent P unless they are satisfied that—
a
the accommodation is likely to be provided for a continuous period of less than 8 weeks, or
b
the arrangements need to be made as a matter of urgency.
5
If the local authority—
a
did not instruct an independent mental capacity advocate to represent P before making the arrangements because they were satisfied that subsection (4)(a) or (b) applied, but
b
subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements,
they must instruct an independent mental capacity advocate to represent P.
6
The local authority must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate.