C1Part 1Persons who lack capacity
Independent mental capacity advocate service
39DPerson subject to Schedule A1 without paid representative
F11
This section applies if—
a
an authorisation under Schedule A1 is in force in relation to a person (“P”),
b
P has a representative (“R”) appointed under Part 10 of Schedule A1, and
c
R is not being paid under regulations under Part 10 of Schedule A1 for acting as P's representative.
2
The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases.
3
The first case is where P makes a request to the supervisory body to instruct an advocate.
4
The second case is where R makes a request to the supervisory body to instruct an advocate.
5
The third case is where the supervisory body have reason to believe one or more of the following—
a
that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;
b
that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;
c
that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it.
6
The duty in subsection (2) is subject to section 39E.
7
If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters—
a
the effect of the authorisation;
b
the purpose of the authorisation;
c
the duration of the authorisation;
d
any conditions to which the authorisation is subject;
e
the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, decided that P met the qualifying requirement in question;
f
the relevant rights;
g
how to exercise the relevant rights.
8
The advocate is, in particular, to take such steps as are practicable to help P or R—
a
to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or
b
to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.
9
If the advocate helps P or R to exercise the right of review—
a
the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable;
b
the advocate may give information, or make submissions, to any assessor carrying out a review assessment.
10
In this section—
“relevant rights” means—- a
the right to apply to court, and - b
the right of review;
- a
“right to apply to court” means the right to make an application to the court to exercise its jurisdiction under section 21A;“right of review” means the right under Part 8 of Schedule A1 to request a review.
Pt. 1 applied (1.12.2017) by The Court of Protection Rules 2017 (S.I. 2017/1035), rules 23.3, 24.6(1)