Statutory Instruments
Mental Capacity, England
Made
31st March 2009
Coming into force
1st April 2009
1.—(1) These Regulations may be cited as the Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009, and shall come into force on 1st April 2009.
(2) These Regulations apply in relation to England.
(3) In these Regulations—
“the Commission” means the Care Quality Commission established by section 1 of the Health and Social Care Act 2008(3); and
“Schedule A1” means Schedule A1 to the Mental Capacity Act 2005.
2. The Commission must monitor the operation of Schedule A1 in relation to England.
3. The Commission must report to the Secretary of State on the operation of Schedule A1 in relation to England as the Secretary of State may from time to time request.
4. For the purpose of monitoring, or reporting on, the operation of Schedule A1, the Commission may—
(a)visit hospitals and care homes;
(b)visit and interview persons accommodated in hospitals and care homes; and
(c)require the production of, and inspect, records relating to the care or treatment of persons accommodated in hospitals or care homes—
(i)who are the subject of an authorisation under Schedule A1; or
(ii)whom the Commission has reason to consider ought to have been or should be the subject of an assessment under Schedule A1.
5.—(1) The Commission may at any time give the Secretary of State advice or information on the operation of Schedule A1 in relation to England.
(2) When requested to do so by the Secretary of State, the Commission must give the Secretary of State such advice or information on the operation of Schedule A1 in relation to England as may be specified in the request.
6.—(1) The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008(4) shall be amended as follows—
(2) In regulation 3 (eligibility – general), for paragraph (2) substitute—
“(2) The person must satisfy the supervisory body that there is in force in relation to that person an adequate and appropriate indemnity arrangement which provides cover in respect of any liabilities that might arise in connection with carrying out the assessment.
(2A) For the purposes of this regulation, an “indemnity arrangement” may comprise—
(a)a policy of insurance;
(b)an arrangement made for the purposes of indemnifying a person; or
(c)a combination of a policy of insurance and an arrangement made for the purposes of indemnifying a person.”.
(3) In regulation 19 (effect of change in supervisory body)—
(a)in paragraph (1) for “paragraphs (3) to (6)” substitute “paragraphs (3) to (6A)”;
(b)in paragraph (2) for “paragraphs (7) to (9)” substitute “ paragraphs (7) to (10)”;
(c)after paragraph (6) insert—
“(6A) Local authority A or local authority C shall be entitled to recover from local authority B expenditure incurred in exercising functions as the supervisory body.”.
Signed by authority of the Secretary of State for Health.
Phil Hope
Minister of State,
Department of Health
31st March 2009
(This note is not part of the Regulations)
These Regulations contain measures relating to the monitoring and reporting of the operation of Schedule A1 to the Mental Capacity Act 2005 (“Schedule A1”), which concerns the deprivation of liberty of residents of hospitals and care homes. They also amend provisions in regulations 3(2) and 19 of the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 (S.I. 2008/1858) (“Standard Authorisations Regulations”).
The Care Quality Commission has a duty to monitor the operation of Schedule A1 (regulation 2).
The Commission must report to the Secretary of State on the operation of Schedule A1 when requested to do so by the Secretary of State (regulation 3).
In order to fulfil its monitoring or reporting responsibilities, the Commission may visit hospitals and care homes, visit and interview residents of hospitals and care homes and inspect records relating to the care or treatment of such residents for the purposes of Schedule A1 (regulation 4).
The Commission may provide advice or information to the Secretary of State at any time, but must do so when requested by the Secretary of State (regulation 5).
The Standard Authorisations Regulations are amended to make two changes. Regulation 3(2) provides that in order to be eligible to carry out an assessment, a person must be insured in respect of any liabilities arising from that assessment. This is amended to provide that the person must satisfy the supervisory body that they have an adequate and appropriate indemnity arrangement to provide the necessary cover and this may be provided by insurance, indemnity or a combination of both (regulation 6(2)).
Regulation 19 is amended so that where as a result of a determination of ordinary residence the identity of the local authority as to which should exercise the functions of the supervisory body changes, one local authority may recover from another any expenditure it has incurred (regulation 6(3)).
Inserted into the Mental Capacity Act 2005 by section 50 (5) of the Mental Health Act 2007 (c.12).
2005 c.9. Section 65 was amended by paragraph 11 of Schedule 9 to the Mental Health Act 2007. Section 65(1) was amended by S.I.2006/1016.