SCHEDULES
SCHEDULE 9Amendments relating to new section 4A of, & Schedule A1 to, Mental Capacity Act 2005
Part 1Other amendments to Mental Capacity Act 2005
Introduction
1
The Mental Capacity Act 2005 (c. 9) is amended as set out in this Part of this Schedule.
New section 21A
2
F1After section 21 insert—
Powers of the court in relation to Schedule A1
21APowers of court in relation to Schedule A1
1
This section applies if either of the following has been given under Schedule A1—
a
a standard authorisation;
b
an urgent authorisation.
2
Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—
a
whether the relevant person meets one or more of the qualifying requirements;
b
the period during which the standard authorisation is to be in force;
c
the purpose for which the standard authorisation is given;
d
the conditions subject to which the standard authorisation is given.
3
If the court determines any question under subsection (2), the court may make an order—
a
varying or terminating the standard authorisation, or
b
directing the supervisory body to vary or terminate the standard authorisation.
4
Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters—
a
whether the urgent authorisation should have been given;
b
the period during which the urgent authorisation is to be in force;
c
the purpose for which the urgent authorisation is given.
5
Where the court determines any question under subsection (4), the court may make an order—
a
varying or terminating the urgent authorisation, or
b
directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.
6
Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.
7
An order under subsection (6) may, in particular, exclude a person from liability.
Section 35: Appointment of independent mental capacity advocates
3
In section 35, in subsection (1) after “relate” insert “
or persons who fall within section 39A, 39C or 39D
”
.
Section 38: IMCAs and provision of accommodation by NHS body
4
1
Section 38 is amended as follows.
2
After subsection (2) insert—
2A
And this section does not apply if—
a
an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the NHS body) to represent P, and
b
the hospital or care home in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section.
3
After subsection (9) insert—
10
For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.
Section 39: IMCAs and provision of accommodation by local authority
5
1
Section 39 is amended as follows.
2
After subsection (3) insert—
3A
And this section does not apply if—
a
an independent mental capacity advocate must be appointed under section 39A or 39C (whether or not by the local authority) to represent P, and
b
the place in which P is to be accommodated under the arrangements referred to in this section is the relevant hospital or care home under the authorisation referred to in that section.
3
F2After subsection (6) insert—
7
For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.
New section 39A
6
F3After section 39 insert—
39APerson becomes subject to Schedule A1
1
This section applies if—
a
a person (“P”) becomes subject to Schedule A1, and
b
the managing authority of the relevant hospital or care home 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 to consult in determining what would be in P's best interests.
2
The managing authority must notify the supervisory body that this section applies.
3
The supervisory body must instruct an independent mental capacity advocate to represent P.
4
Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.
5
This section is subject to paragraph 161 of Schedule A1.
6
For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.
39BSection 39A: supplementary provision
1
This section applies for the purposes of section 39A.
2
P becomes subject to Schedule A1 in any of the following cases.
3
The first case is where an urgent authorisation is given in relation to P under paragraph 76(2) of Schedule A1 (urgent authorisation given before request made for standard authorisation).
4
The second case is where the following conditions are met.
5
The first condition is that a request is made under Schedule A1 for a standard authorisation to be given in relation to P (“the requested authorisation”).
6
The second condition is that no urgent authorisation was given under paragraph 76(2) of Schedule A1 before that request was made.
7
The third condition is that the requested authorisation will not be in force on or before, or immediately after, the expiry of an existing standard authorisation.
8
The expiry of a standard authorisation is the date when the authorisation is expected to cease to be in force.
9
The third case is where, under paragraph 69 of Schedule A1, the supervisory body select a person to carry out an assessment of whether or not the relevant person is a detained resident.
39CPerson unrepresented whilst subject to Schedule A1
1
This section applies if—
a
an authorisation under Schedule A1 is in force in relation to a person (“P”),
b
the appointment of a person as P's representative ends in accordance with regulations made under Part 10 of Schedule A1, and
c
the managing authority of the relevant hospital or care home 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 to consult in determining what would be in P's best interests.
2
The managing authority must notify the supervisory body that this section applies.
3
The supervisory body must instruct an independent mental capacity advocate to represent P.
4
Paragraph 159 of Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.
5
The appointment of an independent mental capacity advocate under this section ends when a new appointment of a person as P's representative is made in accordance with Part 10 of Schedule A1.
6
For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.
39DPerson subject to Schedule A1 without paid representative
1
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;
“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.
39ELimitation on duty to instruct advocate under section 39D
1
This section applies if an advocate is already representing P in accordance with an instruction under section 39D.
2
Section 39D(2) does not require another advocate to be instructed, unless the following conditions are met.
3
The first condition is that the existing advocate was instructed—
a
because of a request by R, or
b
because the supervisory body had reason to believe one or more of the things in section 39D(5).
4
The second condition is that the other advocate would be instructed because of a request by P.
Section 40: Exceptions to duty to appoint IMCAs
7
1
Section 40 (as substituted by section 49 of this Act) is amended as follows.
2
The provision of section 40 becomes subsection (1) of section 40.
3
F4In subsection (1) for “or 39(4) or (5)” substitute “
, 39(4) or (5), 39A(3), 39C(3) or 39D(2)
”.
4
F4After subsection (1) insert—
2
A person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, a person nominated by P as a person to be consulted in matters to which a duty mentioned in subsection (1) relates.
Section 42: Codes of practice
8
F51
Section 42 is amended as follows.
2
In subsection (1), after paragraph (f) insert—
fa
for the guidance of persons exercising functions under Schedule A1,
fb
for the guidance of representatives appointed under Part 10 of Schedule A1,
3
In subsection (4), after paragraph (d) insert—
da
in the exercise of functions under Schedule A1,
db
as a representative appointed under Part 10 of Schedule A1,
Section 50: Application to the Court of Protection
9
F6In section 50, after subsection (1) insert—
1A
Nor is permission required for an application to the court under section 21A by the relevant person's representative.
Section 64: Interpretation
10
1
Section 64 is amended as follows.
2
F7In subsection (1), insert at the appropriate place—
“authorisation under Schedule A1” means either—
a
a standard authorisation under that Schedule, or
b
an urgent authorisation under that Schedule.
3
F7In subsection (1), in the definition of “local authority” after “ “local authority”” insert “
, except in Schedule A1,
”.
4
After subsection (4) insert—
5
In this Act, references to deprivation of a person's liberty have the same meaning as in Article 5(1) of the Human Rights Convention.
6
For the purposes of such references, it does not matter whether a person is deprived of his liberty by a public authority or not.
Section 65: Rules, regulations and orders
11
F81
Section 65 is amended as follows.
2
After subsection (4) insert—
4A
Subsection (2) does not apply to a statutory instrument containing regulations made by the Secretary of State under Schedule A1.
4B
If such a statutory instrument contains regulations under paragraph 42(2)(b), 129, 162 or 164 of Schedule A1 (whether or not it also contains other regulations), the instrument may not be made unless a draft has been laid before and approved by resolution of each House of Parliament.
4C
Subject to that, such a statutory instrument is subject to annulment in pursuance of a resolution of either House of Parliament.