Legalize / United Kingdom / Northern Ireland / Act of the Northern Ireland Assembly

Mental Capacity Act (Northern Ireland) 2016

Type Act of the Northern Ireland Assembly

Publication 2016-05-09

Last updated 2022-04-01

State In force

Jurisdiction Northern Ireland

Department Statute Law Database

Source legislation.gov.uk

articles 3

Reform history JSON API

(4) Subsection (3) does not apply if, at the time of the transaction, Y—

(a) knows that a lasting power of attorney was not created; or

(b) is aware of circumstances which, if a lasting power of attorney had been created, would have terminated the authority of any person within subsection (3)(a) to act as an attorney.

(5) If the interest of a purchaser depends on whether a transaction was valid by virtue of subsection (3), it is to be conclusively presumed in favour of the purchaser that the transaction was valid if—

(a) the transaction was completed within 12 months of the date on which the instrument was registered; or

(b) Y makes a statutory declaration, before or within 3 months after the completion of the purchase, that Y had no reason at the time of the transaction to doubt that the person or persons mentioned in subsection (3)(a) had authority to dispose of the property which was the subject of the transaction.

(6) In its application to a lasting power of attorney which relates to matters in addition to the donor's property and affairs, section 4 of the Powers of Attorney Act (Northern Ireland) 1971 (protection where power is revoked) has effect as if references to revocation included the cessation of the power in relation to the donor's property and affairs.

Reliance on authority of attorney in relation to treatment etc

109

(1) This section applies if—

(a) an instrument has been registered under Schedule 4 as a lasting power of attorney granted by a person (“P”);

(b) another person (“D”) does an act in connection with the care, treatment or personal welfare of P;

(c) D does the act with the consent of a person (“A”) purporting to be an attorney under a lasting power of attorney granted by P; and

(d) either A is not such an attorney, or it is not within the scope of A's authority to consent in relation to the matter in question.

(2) If—

(a) before doing the act, D takes reasonable steps to establish whether—

(i) A is an attorney under a lasting power of attorney granted by P, and

(ii) it is within the scope of A's authority to consent in relation to the matter in question, and

(b) when doing the act, D reasonably believes that A is such an attorney and has authority to consent in relation to the matter,

D does not incur any liability in relation to the act because A was not such an attorney or, as the case may be, did not have such authority.

Powers of the court

Powers of court as to lasting powers of attorney

110

(1) This section applies if—

(a) a person has executed an instrument with a view to creating a lasting power of attorney (a “relevant instrument”) or purported to execute a relevant instrument; or

(b) an instrument has been registered as a lasting power of attorney.

(2) The court may determine any question relating to—

(a) whether one or more of the requirements for the creation of a lasting power of attorney have been met;

(b) whether the instrument or power has been revoked or has otherwise come to an end.

(3) Subsection (4) applies if the court is satisfied—

(a) that fraud or undue pressure was used to induce a person to create a lasting power of attorney or execute a relevant instrument;

(b) that an attorney under a lasting power of attorney has behaved, or is behaving, in a way that contravenes the attorney's authority or is not in the donor's best interests; or

(c) that a person appointed as attorney or replacement attorney by a lasting power of attorney or relevant instrument proposes to behave as attorney in a way that would contravene the attorney's authority or would not be in the donor's best interests.

(4) Where this subsection applies, the court may—

(a) direct that an instrument purporting to create the lasting power of attorney is not to be registered; or

(b) if the donor lacks capacity to revoke the instrument or the lasting power of attorney—

(i) revoke the instrument or power; or

(ii) terminate the appointment of a person appointed as attorney or replacement attorney by the instrument or power.

Powers of court as to operation of lasting powers of attorney

111

(1) The court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.

(2) The court may—

(a) give directions with respect to decisions—

(i) which an attorney under a lasting power of attorney has authority to make; and

(ii) which the donor lacks capacity to make;

(b) give any consent or authorisation to act which an attorney under a lasting power of attorney would have to obtain from the donor if the donor had capacity to give it.

(3) The court may, if the donor of a lasting power of attorney lacks capacity to do so—

(a) give directions to an attorney with respect to the rendering by the attorney of reports or accounts and the production of records kept by the attorney for that purpose;

(b) require an attorney (“A”) to supply information or produce documents or things in A's possession as attorney;

(d) relieve an attorney wholly or partly from any liability which the attorney has or may have incurred on account of a breach of a duty as attorney.

(4) The court may authorise the making of gifts, under a lasting power of attorney, which are not within section 100(2) (permitted gifts).

PART 6 — HIGH COURT POWERS: DECISIONS AND DEPUTIES

Declarations

The court’s power to make declarations

112

(1) The court may make declarations in relation to a person who is 16 or over as to—

(a) whether the person has or lacks capacity to make a decision specified in the declaration;

(b) whether the person has or lacks capacity to make decisions on a matter described in the declaration;

(2) In this section “act” includes an omission and a course of conduct.

Decisions and deputies

The court’s powers to make decisions and appoint deputies: general

113

(1) This section applies if—

(a) a person (“P”) lacks capacity in relation to a matter or matters concerning—

(i) P's care, treatment or personal welfare, or

(ii) P's property and affairs; and

(b) P is 16 or over or section 115(3) applies.

(2) The court may—

(a) by making an order, make on P's behalf a decision or decisions that P lacks capacity to make in relation to the matter or matters; or

(b) appoint a person (a “deputy”) to make decisions on P's behalf in relation to the matter or matters (see further sections 116 and 117).

(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1, 2, 5 and 7 (principles, best interests).

(4) When deciding whether it would be in P's best interests to appoint a deputy, the court must (in addition to complying with section 7) have regard to the principles that—

(a) a decision by the court is to be preferred to the appointment of a deputy to make a decision; and

(b) the powers conferred on a deputy should be as limited in scope and duration as is practicable in the circumstances.

(5) The court may—

(a) make such further orders,

(b) give such directions, and

as it considers appropriate for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

(6) The court may make an order or appointment under any provision of this section, or give a direction under subsection (5), on such terms as it considers are in P's best interests (even where no application is before the court for an order, appointment or direction on those terms).

(7) An order of the court may be varied or discharged by a subsequent order.

(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on a deputy if it is satisfied that the deputy—

(a) has behaved, or is behaving, in a way that contravenes the authority conferred on the deputy by the court or is not in P's best interests; or

(b) proposes to behave in a way that would contravene that authority or would not be in P's best interests.

Section 113 powers: care, treatment and personal welfare

114

(1) The powers under section 113 as respects P's care, treatment and personal welfare extend in particular to—

(a) deciding where P is to live;

(b) deciding what contact, if any, P is to have with any specified persons;

(d) giving or refusing consent to the provision of a treatment by a person providing health care for P;

(e) giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.

(2) In this section “specified” means specified by the court.

(3) Subsection (1) is subject to section 117 (restrictions on deputies).

Section 113 powers: property and affairs

115

(1) The powers under section 113 as respects P's property and affairs extend in particular to—

(a) the control and management of P's property;

(b) the sale, exchange, charging, gift or other disposition of P's property;

(d) the carrying on, on P's behalf, of any profession, trade or business;

(e) the taking of a decision which will have the effect of dissolving a partnership of which P is a member;

(f) the carrying out of any contract entered into by P;

(g) the discharge of P's debts and of any of P's obligations, whether legally enforceable or not;

(h) the settlement of any of P's property, whether for P's benefit or for the benefit of others;

(i) the execution for P of a will;

(j) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;

(k) the conduct of legal proceedings in P's name or on P's behalf.

(2) No will may be executed by virtue of subsection (1)(i) at a time when P is under 18.

(3) The powers under section 113 as respects any matter concerning P's property and affairs (except the power to execute a will for P) may be exercised even if P is under 16 if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when P reaches 18.

(4) Schedule 5 supplements the provisions of this section.

(5) Subsection (1) is subject to section 117 (restrictions on deputies).

Appointment of deputies

116

(1) A deputy appointed by the court must be—

(a) an individual who is 18 or over; or

(b) as respects powers concerning property and affairs, either such an individual or a trust corporation.

(2) The court may appoint an individual by appointing the holder for the time being of a specified office or position.

(3) A person may be appointed as a deputy only with that person's consent.

(4) The court may appoint two or more deputies to act—

(a) jointly;

(b) jointly and severally; or

(5) When appointing a deputy or deputies, the court may at the same time appoint one or more other persons to succeed the existing deputy or those deputies—

(a) in specified circumstances or on the happening of specified events;

(b) for a specified period.

(6) A deputy is to be treated as P's agent in relation to anything done or decided by the deputy within the scope of the deputy's appointment and in accordance with this Act.

(7) The deputy is entitled—

(a) to be reimbursed out of P's property for the deputy's reasonable expenses in discharging the deputy's functions; and

(b) if the court so directs when appointing the deputy, to remuneration out of P's property for discharging them.

(8) The court may confer on a deputy powers to—

(a) take possession or control of all or any specified part of P's property;

(b) exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.

(9) The court may require a deputy—

(a) to give to the Public Guardian such security as the court considers appropriate for the proper performance of the deputy's functions; and

(b) to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.

(10) In this section “specified” means specified by the court.

Restrictions on deputies

117

(1) A deputy does not have power to make a decision on behalf of P in relation to a matter unless P lacks capacity, or the deputy reasonably believes that P lacks capacity, in relation to the matter.

(2) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1, 2, 5 and 7 (principles, best interests).

(3) Nothing in section 113 or 114 permits a deputy to be given power—

(a) to prohibit a specified person from having contact with P;

(b) to direct a person responsible for P's health care to allow a different person to take over that responsibility.

(4) Nothing in section 113 or 115 permits a deputy to be given powers with respect to—

(a) the settlement of any of P's property, whether for P's benefit or for the benefit of others;

(b) the execution for P of a will; or

(c) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise.

(5) A deputy may not be given power to make a decision on behalf of P which is inconsistent with—

(a) a decision that is made in accordance with this Act by an attorney under a lasting power of attorney granted by P, and is within the scope of the attorney's authority; or

(b) a decision that is made in accordance with the Enduring Powers of Attorney (Northern Ireland) Order 1987 by an attorney under an enduring power of attorney granted by P, and is within the scope of the attorney's authority.

(6) A deputy may not refuse consent to the provision of life-sustaining treatment to P.

(7) A deputy may not deprive P of his or her liberty or authorise another person to deprive P of his or her liberty.

(8) A deputy may not do, or authorise another person to do, an act restraining P unless in doing so the deputy is acting within the scope of an authority expressly conferred on the deputy by the court and the deputy reasonably believes—

(a) that P lacks capacity in relation to the matter in question;

(b) that there is a risk of harm to P if the deputy does not do or (as the case may be) authorise the act restraining P; and

(i) the likelihood of harm to P; and

(ii) the seriousness of the harm concerned.

(9) In this section an “act restraining P” means an act (other than a deprivation of P's liberty) which—

(a) is intended to restrict P's liberty of movement, whether or not P resists; or

(b) is a use of force or a threat to use force and is done with the intention of securing the doing of an act which P resists.

(10) A deputy may not give consent to psychosurgery in respect of P.

(11) The Department may by regulations amend subsection (10) so as to extend the descriptions of treatment to which a deputy may not give consent.

Reliance on authority of deputy in relation to treatment etc

118

(1) This section applies if—

(a) an order has been made under section 113(2)(b) appointing a deputy for a person (“P”);

(b) another person (“D”) does an act in connection with the care, treatment or personal welfare of P;

(d) either C is not P's deputy, or it is not within the scope of C's authority to consent in relation to the matter in question.

(2) If—

(a) before doing the act, D takes reasonable steps to establish whether—

(i) C is P's deputy, and

(ii) it is within the scope of C's authority to consent in relation to the matter in question, and

(b) when doing the act, D reasonably believes that C is P's deputy and has authority to consent in relation to the matter,

D does not incur any liability in relation to the act because C was not P's deputy or (as the case may be) did not have such authority.

Ancillary powers of the court

Interim orders and directions

119

The court may, pending the determination of an application to it in relation to a person (“P”), make an order or give directions in respect of any matter if—

(a) there is reason to believe that P lacks capacity in relation to the matter;

(b) the matter is one to which the court's powers under this Part extend; and

Power to call for reports

120

(1) This section applies where, in proceedings brought in respect of a person (“P”) under this Part, the court is considering a question relating to P.

(2) The court may require a report to be made to it by the Public Guardian or by a Court Visitor.

(3) The court may require an HSC trust, the Department or RQIA to arrange for a report to be made—

(a) by one of its officers or employees; or

(b) by such other person (other than the Public Guardian or a Court Visitor) as that body considers appropriate.

(4) The report must deal with such matters relating to P as the court may direct.

(5) Rules of court may specify matters which, unless the court directs otherwise, must also be dealt with in the report.

(6) The report may be made in writing or orally, as the court may direct.

Powers of Public Guardian or Court Visitor in respect of reports under section 120(2)

121

(1) This section applies where, in proceedings brought in respect of a person (“P”) under this Part, the court imposes a requirement to make a report under section 120(2).

(2) If the Public Guardian or a Court Visitor is making a visit in the course of complying with the requirement, he or she may interview P in private.

(3) If a Court Visitor who is a Special Visitor is making a visit in the course of complying with the requirement, he or she may if the court so directs carry out in private a medical, psychiatric or psychological examination of P's capacity and condition.

(4) For the purpose of complying with the requirement, the Public Guardian or a Court Visitor may at all reasonable times require the production of, examine and take copies of—

(a) any health record (as defined by section 306),

(b) any relevant record, or

so far as the record relates to P.

(5) But if P has capacity in relation to whether the power under subsection (4) should be exercised, the power may be exercised only with P's consent.

(6) In this section—

“court record” means documentation held by the court relating to the proceedings mentioned in subsection (1);

“relevant record” means a record relating to P's care, treatment or personal welfare which is a record of or held by—an HSC trust;...RQIA;a Northern Ireland department or its employees or agents;the managing authority of an independent hospital; orthe managing authority of a care home.

Practice and procedure

Applications to the court

122

(1) No leave is required for an application to the court for the exercise of any of its powers under this Part—

(a) by a person who lacks, or is alleged to lack, capacity;

(b) if such a person is under 18, by anyone with parental responsibility for that person;

(c) where the application relates to a lasting power of attorney or enduring power of attorney and the application is made by the donor or any person who is an attorney under the power;

(d) by a deputy appointed by the court for a person to whom the application relates;

(e) by a person named in an existing order of the court, if the application relates to the order; or

(f) where the application is made by virtue of section 129 (proceedings following inquiry by Public Guardian).

(2) But, subject to rules of court and to paragraph 21(2) of Schedule 9 (declarations relating to private international law), leave is required for any other application to the court for the exercise of any of its powers under this Act.

(3) In deciding whether to grant leave the court must (in particular) have regard to—

(a) the applicant's connection with the person to whom the application relates;

(b) the reasons for the application;

(d) whether the benefit can be achieved in any other way.

Duty to notify Attorney General

123

(1) A person who makes an application to the court under this Part must notify the Attorney General of that fact.

(2) The notification must be made in accordance with rules of court.

(3) The Attorney General may intervene in the proceedings on the application in such way as the Attorney General considers appropriate.

Rules of court

124

(1) In this section “proceedings” means proceedings before the court with respect to a person who lacks, or is alleged to lack, capacity (“P”).

(2) Rules of court may make provision as to the conduct of such proceedings including provision—

(a) as to the carrying out of preliminary or incidental inquiries;

(b) as to the way and form in which proceedings are to be commenced and carried on;

(d) as to the persons who are to be entitled to be notified of, to attend, or to take part in proceedings;

(e) as to the evidence which may be authorised or required to be given in proceedings and the way (whether on oath or otherwise and whether orally or in writing) in which it is to be given;

(f) as to the administration of oaths and taking of affidavits for the purposes of proceedings;

(g) for the allocation, in specified circumstances, of any specified description of proceedings to a specified judge or to specified descriptions of judges;

(h) for the exercise of the jurisdiction of the court, in specified circumstances, by its officers or other staff;

(i) for enabling the court to appoint a suitable person (who may, with his or her consent, be the Official Solicitor) to act in the name of, or on behalf of, or to represent P;

(j) for enabling an application to the court to be disposed of without a hearing;

(k) as to authorising or requiring—

(i) the attendance and examination of persons who lack, or are alleged to lack capacity;

(ii) the provision of information; and

(iii) the production of documents;

(l) for enabling the court to proceed with, or with any part of, a hearing in the absence of P;

(m) for enabling or requiring the proceedings or any part of them to be conducted in private and for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public;

(n) as to what may be received as evidence (whether or not admissible apart from the rules) and the way in which it is to be presented;

(o) for the enforcement of orders made and directions given in the proceedings;

(p) as to—

(i) the making of orders for the payment of costs to or by persons attending, as well as persons taking part in, proceedings; and

(ii) the way in which and funds out of which any such costs are to be paid;

(q) the way in which, and funds from which, fees are to be paid;

(r) as to the termination of proceedings, whether on the death or recovery of P or otherwise, and the exercise, pending the termination of the proceedings, of powers exercisable under this Part in relation to P's—

(i) care, treatment or personal welfare; or

(ii) property or affairs;

(s) for charging fees and costs upon P's estate;

(t) for the payment of fees and costs within a specified time of P's death or the conclusion of the proceedings.

(3) Rules of court may also make provision as to appeals from decisions of the court in such proceedings, including provision—

(a) that where a decision of the court is made by a person exercising the jurisdiction of the court by virtue of rules made under subsection (2)(h), an appeal from that decision lies to a judge of the court of a specified description and not to the Court of Appeal;

(b) that, in specified cases, an appeal from a decision of the court may not be made without leave;

(d) as to any requirements to be met before leave is granted;

(e) that where a judge of the court makes a decision on an appeal, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that—

(i) the appeal would raise an important point of principle or practice; or

(ii) there is some other compelling reason for the Court of Appeal to hear it;

(f) as to any considerations to be taken into account in relation to granting or refusing leave to appeal.

(4) A charge, created by virtue of subsection (2)(s), upon the estate of a person is not to cause any interest of that person in any property to fail or determine or to be prevented from recommencing.

(5) In this section “specified” means specified by the rules.

PART 7 — PUBLIC GUARDIAN AND COURT VISITORS

Public Guardian

The Public Guardian

125

(1) The Department of Justice must appoint an officer, to be known as the Public Guardian.

(2) The Department of Justice may pay to the Public Guardian such salary and allowances as it may determine.

(3) A determination under subsection (2) requires the approval of the Department of Finance.

(4) The Department of Justice may, after consulting the Public Guardian—

(a) provide the Public Guardian with such officers and staff, or

(b) enter into such contracts with other persons for the provision (by them or their sub-contractors) of officers, staff or services,

as it considers necessary for the proper performance of the Public Guardian's functions.

(5) Any functions of the Public Guardian may, to the extent authorised by the Public Guardian, be performed by any of the Public Guardian's officers.

Functions of the Public Guardian

126

(1) The Public Guardian has the following functions—

(a) establishing and maintaining a register of lasting powers of attorney;

(b) establishing and maintaining a register of orders appointing deputies;

(d) directing a Court Visitor to visit—

(i) a person who is an attorney under a lasting power of attorney,

(ii) a deputy appointed by the court, or

(iii) a person who proposes to grant or has granted a lasting power of attorney or for whom a deputy is appointed (“P”),

and to make a report to the Public Guardian on such matters as the Public Guardian may direct;

(e) receiving security which the court requires a person to give for the performance of functions;

(f) receiving reports from persons who are attorneys under lasting powers of attorney and deputies appointed by the court;

(g) reporting to the court on such matters relating to proceedings under this Act (except proceedings under Part 10) as the court requires;

(h) dealing with representations (including complaints) about the way in which powers of an attorney under a lasting power of attorney or of a deputy appointed by the court are being exercised;

(i) publishing (in any way the Public Guardian considers appropriate) any information the Public Guardian considers appropriate about the performance of the Public Guardian's functions.

(2) The functions conferred by subsection (1)(c), (d) and (h) may be performed in co-operation with any other person who has functions in relation to the care or treatment of P.

(3) The Department of Justice may by regulations make provision—

(a) conferring on the Public Guardian other functions in connection with this Act;

(b) in connection with the performance by the Public Guardian of his or her functions.

(4) Regulations made under subsection (3)(b) may in particular make provision as to—

(a) the giving of security by deputies appointed by the court and the enforcement and discharge of security so given;

(b) the way in which, and funds into which, fees which may be charged by the Public Guardian under section 116 of the Judicature (Northern Ireland) Act 1978 are to be paid;

(c) the making of reports to the Public Guardian by deputies appointed by the court and others who are directed by the court to carry out any transaction for a person who lacks capacity.

Further powers of the Public Guardian

127

(1) The powers under subsections (2) and (3) may be exercised for the purpose of enabling the Public Guardian to carry out his or her functions in relation to a person (“P”)—

(a) who proposes to grant or has granted a lasting power of attorney; or

(b) for whom a deputy is appointed.

(2) The Public Guardian may visit P and interview P in private.

(3) The Public Guardian may at all reasonable times require the production of, examine and take copies of—

(a) any health record (as defined by section 306), or

(b) any relevant record,

so far as the record relates to P.

(4) But if P has capacity in relation to whether the power under subsection (3) should be exercised, the power may be exercised only with P's consent.

(5) In this section “relevant record” means a record relating to P's care, treatment or personal welfare which is a record of or held by—

(a) an HSC trust or its employees or agents;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) a Northern Ireland department or its employees or agents;

(e) the managing authority of an independent hospital; or

(f) the managing authority of a care home.

Duty to notify the Public Guardian

128

(1) Where a relevant authority is satisfied—

(a) that a person with whom the authority is concerned lacks capacity in relation to a matter or matters relating to that person's care, treatment, personal welfare or property and affairs,

(b) that any of the powers of the court under section 113 ought to be exercised with respect to that matter or matters, and

it is the duty of that relevant authority to notify the Public Guardian of the situation.

(2) In this section a “relevant authority” means—

(a) an HSC trust;

(b) the Department ;

(d) the managing authority of an independent hospital;

(e) the managing authority of a care home.

(3) In this section “a person with whom the authority is concerned” means—

(a) in relation to an HSC trust, a person within the area of the trust;

(b) in relation to the Department , any person;

(d) in relation to the managing authority of an independent hospital or of a care home, an in-patient or resident in the hospital or care home.

Notifications under section 128: procedure and effect

129

(1) A notification under section 128 must be made within such time and in such form as rules of court may specify.

(2) Where a notification is made under section 128 in relation to any person (“P”), the body or person making the notification must, where practicable, inform P's nominated person.

(3) The Public Guardian, on receipt of a notification in respect of a person under section 128—

(a) must consider whether the Public Guardian should make inquiries into the person's case; and

(b) if the Public Guardian considers that he or she should make inquiries, must seek the leave of the court to make them and, if leave is granted, must make such inquiries as he or she considers appropriate.

(4) Where inquiries have been made under subsection (3) the Public Guardian may, if he or she considers it appropriate to do so, arrange for the bringing of proceedings before the court under section 113.

(5) Inquiries under subsection (3) must be made within the period specified by the court.

Court Visitors

130

(1) A Court Visitor is a person who is appointed by the Department of Justice to—

(a) a panel of Special Visitors; or

(b) a panel of General Visitors.

(2) A person may be appointed to a panel of Special Visitors only if—

(a) the person is a medical practitioner or appears to the Department of Justice to have other suitable qualifications or training; and

(b) the person appears to the Department of Justice to have special knowledge of and experience in relation to persons with impairment of, or disturbance in the functioning of, the mind or brain.

(3) A General Visitor need not have a medical qualification.

(4) A Court Visitor—

(a) may be appointed for such term and subject to such conditions, and

(b) may be paid such remuneration and allowances,

as the Department of Justice may determine.

Powers of Court Visitors

131

(1) The powers under subsection (2) and (3) may be exercised for the purpose of enabling a Court Visitor to carry out his or her functions under this Act in relation to a person who lacks capacity.

(2) The Court Visitor may visit the person and interview the person in private.

(3) The Court Visitor may at all reasonable times require the production of, examine and take copies of—

(a) any health record (as defined by section 306), or

(b) any relevant record,

so far as the record relates to the person.

(4) But if the person has capacity in relation to whether the power under subsection (3) should be exercised, the power may be exercised only with his or her consent.

(5) In this section “relevant record” means a record relating to the person's care, treatment or personal welfare which is a record of or held by—

(a) an HSC trust;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) a Northern Ireland department or its employees or agents;

(e) the managing authority of an independent hospital; or

(f) the managing authority of a care home.

PART 8 — RESEARCH

Approved research projects

Research

132

(1) Intrusive research carried out on, or in relation to, a person who is 16 or over and lacks capacity to consent to it is unlawful unless it is carried out—

(a) as part of an approved research project (see subsection (3)); and

(b) in accordance with sections 135 to 137.

(2) Research is “intrusive” if it is of a kind that would be unlawful if it were carried out—

(a) on or in relation to a person who had capacity to consent to it; but

(b) without that person's consent.

(3) In this section “approved research project” means a research project which is for the time being approved for the purposes of this Part by the appropriate body in accordance with section 134.

(4) In this Part “appropriate body”, in relation to a research project, means the person, committee or other body which is specified in regulations made for the purposes of this subsection as the appropriate body in relation to a project of the kind in question.

(5) Section 133 supplements this section.

Section 132: exception for clinical trials

133

(1) This section applies for the purposes of section 132.

(2) A clinical trial which is subject to the provisions of clinical trials regulations is not to be treated as research.

(3) In subsection (2) “clinical trials regulations” means—

(a) the Medicines for Human Use (Clinical Trials) Regulations 2004 and any other regulations replacing those regulations or amending them; and

(b) any other regulations relating to clinical trials that are designated by regulations made for the purposes of this subsection.

Approval of research projects

134

(1) The appropriate body may approve a research project for the purposes of this Part only if it is satisfied that the following requirements will be met in relation to research carried out as part of the project on, or in relation to, a person who is 16 or over and lacks capacity to consent to taking part in the project (“P”).

(2) The research must be connected with—

(a) an impairing condition affecting P; or

(b) its treatment.

(3) There must be reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent to taking part in it.

(4) The research must—

(a) have the potential to benefit P without imposing on P a burden that is disproportionate to the potential benefit to P; or

(b) be intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition.

(5) If the research falls within paragraph (b) of subsection (4) but not within paragraph (a), there must be reasonable grounds for believing—

(a) that the risk to P from taking part in the project is likely to be negligible; and

(b) that nothing done to, or in relation to, P as part of the project will—

(i) interfere with P's freedom of action or privacy in a significant way; or

(ii) be unduly invasive or restrictive.

(6) Without prejudice to subsection (5), there must be reasonable grounds for believing that no serious intervention will be carried out in respect of P as part of the project unless the intervention is one that could lawfully be carried out in respect of P if it were not part of the project (for example, because the conditions of Part 2 are met).

(7) There must be reasonable arrangements in place for ensuring that the requirements of sections 135 to 137 will be met.

(8) In this section—

“impairing condition” means a condition which is (or may be) attributable to, or which causes or contributes to (or may cause or contribute to), an impairment of, or a disturbance in the functioning of, the mind or brain;

“serious intervention” is to be read in accordance with section 63.

Requirement to consult nominated person, carer etc

135

(1) This section applies if a person (“R”)—

(a) is conducting a research project approved under section 134; and

(b) wishes to carry out research, as part of the project, on or in relation to a person (“P”) who is 16 or over and lacks capacity to consent to taking part in the project.

(2) R must take reasonable steps to identify a person who—

(a) otherwise than in a professional capacity, is engaged in caring for P or is interested in P's welfare; and

(b) is prepared to be consulted by R under this section.

(3) If R is unable to identify such a person R must, in accordance with guidance issued by the Department, appoint a person who—

(a) is prepared to be consulted by R under this section; and

(b) has no connection with the project.

(4) R must provide the person identified under subsection (2), or appointed under subsection (3), with information about the project and ask that person—

(a) for advice as to whether P should take part in the project; and

(b) what, in that person's opinion, P's wishes and feelings about taking part in the project would be likely to be if P had capacity in relation to the matter.

(5) If, at any time, the person consulted advises R that in that person's opinion P's wishes and feelings would be likely to lead P to decline to take part in the project (or to wish to withdraw from it) if P had capacity in relation to the matter, R must ensure—

(a) if P is not already taking part in the project, that P does not take part in it;

(b) if P is taking part in the project, that P is withdrawn from it.

(6) Subsection (5)(b) does not require treatment that P has been receiving as part of the project to be discontinued if the treatment can lawfully be carried out despite P having withdrawn from the project.

(7) In subsection (2)(a) “in a professional capacity” means under a contract of employment, under any other contract with any person, or as a volunteer for any organisation.

(8) The fact that a person within subsection (2)(a) is—

(a) an attorney under a lasting power of attorney, or an enduring power of attorney, granted by P,

(b) P's deputy, or

does not prevent that person from being the person consulted under this section.

(9) This section is subject to section 136 (urgent treatment).

Section 135: exception for urgent treatment

136

(1) This section applies if—

(a) section 135 applies;

(b) treatment is being, or is about to be, provided for P as a matter of urgency; and

(i) it is also necessary to take action for the purposes of the research as a matter of urgency; but

(ii) it is not practicable to consult under section 135.

(2) R may take the action if—

(a) R has the agreement of a medical practitioner who is not involved in the organisation or conduct of the research project; or

(b) where it is not practicable in the time available to obtain that agreement, R acts in accordance with a procedure approved by the appropriate body at the time when the research project was approved under section 134.

(3) But R may not continue to act in reliance on subsection (2) if R has reasonable grounds for believing that it is no longer necessary to take the action as a matter of urgency.

Additional safeguards

137

(1) This section applies in relation to a person (“P”) who is 16 or over and is taking part in a research project approved under section 134 even though P lacks capacity to consent to taking part.

(2) Nothing may be done to, or in relation to, P in the course of the research—

(a) to which P appears to object (whether by showing signs of resistance or otherwise) except where what is being done is intended to protect P from harm or to reduce or prevent pain or discomfort; or

(b) which is the carrying out or continuation of treatment of P and would be contrary to—

(i) an effective advance decision to refuse treatment which has been made by P, or

(ii) any other form of statement made by P and not subsequently withdrawn,

of which the person conducting the research project (“R”) is aware.

(3) The interests of P must be assumed to outweigh those of science and society.

(4) If P indicates (in any way) a wish to be withdrawn from the project P must be withdrawn without delay.

(5) P must be withdrawn from the project, without delay, if at any time R has reasonable grounds for believing that any requirement set out in section 134(2) to (7) is no longer met in relation to research being carried out on, or in relation to, P.

(6) Subsections (4) and (5) do not require treatment that P has been receiving as part of the project to be discontinued if the treatment can lawfully be carried out despite P having withdrawn from the project.

(7) In this section—

(a) “an effective advance decision to refuse treatment” means a decision which, under the common law relating to advance decisions, has the same effect as if at the material time P—

(i) refused consent to the treatment's being carried out or continued; and

(ii) had capacity to refuse that consent; and

(b) “the material time” means the time when the question arises whether the treatment should be carried out or continued.

Transitional cases

Loss of capacity during research project: transitional cases

138

(1) This section applies where a person who is 16 or over (“P”)—

(a) consented to take part in a research project begun before the coming into operation of section 132; and

(b) before the conclusion of the project, loses capacity to consent to continue to take part in it.

(2) Regulations may provide that, despite P's loss of capacity, research of a prescribed kind may be carried out on, or in relation to, P if—

(a) the project satisfies prescribed requirements;

(b) any information or material relating to P which is used in the research is of a prescribed description and was obtained before P's loss of capacity; and

(c) the person conducting the project takes in relation to P such steps as may be prescribed for the purpose of protecting P.

(3) The regulations may in particular—

(a) make provision about when, for the purposes of the regulations, a project is to be treated as having begun;

(b) include provision similar to any made by sections 134 to 137.

PART 9 — POWER OF POLICE TO REMOVE PERSON TO PLACE OF SAFETY

Power of police to remove person from public place to place of safety

139

(1) If—

(a) a constable finds in a public place a person who appears to the constable to be in immediate need of care or control, and

(b) the constable reasonably believes that the conditions in subsection (2) are met,

the constable may remove that person to a place of safety.

(2) Those conditions are that—

(a) failure to remove the person from the public place would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(b) removing the person to a place of safety is a proportionate response to the likelihood and seriousness of the harm concerned;

(c) because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should be taken to a place of safety; and

(d) removing the person to the place of safety would be in the person's best interests.

(3) The powers conferred by this Part are subject to section 157 (principles).

(4) “Place of safety” and “public place” are defined for the purposes of this Part by section 160.

Information to be given on removal

140

(1) The removal of a person (“R”) from a public place under section 139 is not lawful unless R is informed—

(a) before or at the time of being taken from the public place, or

(b) as soon as practicable after that time,

that R is to be (or is being) removed to a place of safety under section 139.

(2) If R arrives at the place of safety before it is practicable to give R that information, subsection (1) is to be read as requiring R to be informed as soon as practicable that R has been removed to a place of safety under section 139.

(3) Nothing in this section is to be taken to require R to be informed if it was not reasonably practicable to inform R because R escaped before the information could be given.

(4) In consequence of this section, Article 30 of PACE (information to be given on arrest) does not apply in relation to the removal of a person from a public place under section 139.

Search of person on exercise of power to remove

141

(1) Subsection (2) applies where a person in a public place is informed that he or she is to be (or is being) removed to a place of safety under section 139.

(2) The person is to be regarded for the purposes of Article 34 of PACE (search upon arrest) as having been arrested at the time when he or she was so informed.

(3) Where—

(a) a person (“R”) is removed from a public place under section 139, and

(b) it is not practicable to inform R as mentioned in subsection (1) before R is removed from the public place,

R is to be regarded for the purposes of Article 34 of PACE as having been arrested at the time when it was decided to remove R from that place to a place of safety.

(4) Article 34 of PACE applies by virtue of this section as if—

(a) paragraphs (2)(a)(ii) and (b), (6) and (7) were omitted;

(b) in paragraph (3) the reference to evidence were omitted.

Powers of police to detain person removed from public place

Power of police to detain in hospital a person removed from a public place

142

(1) This section applies where a person is taken to a hospital under section 139.

(2) The person may be detained under this section in the hospital by a constable for the purpose of enabling the person to be examined by a medical practitioner and interviewed by an approved social worker, if the constable reasonably believes that the detention conditions are met (see section 144).

(3) If at any time while the person is detained in a hospital under this section it appears to the constable detaining the person that the detention conditions are no longer met, the person must immediately be discharged from detention under this section.

(4) Subsection (3) does not apply if the transfer conditions in section 145 are met and the person is taken to another place of safety under that section.

(5) See also section 146 (maximum period of detention under this Part).

Power to detain in police station a person removed from a public place

143

(1) This section applies where a person is taken to a police station under section 139.

(2) If a custody officer reasonably believes that the detention conditions are met (see section 144), the person may be detained under this section in the police station—

(a) for the purpose of enabling the person to be examined by a medical practitioner and interviewed by an approved social worker;

(b) for the purpose of preventing physical or psychological harm to that person or other persons while any necessary arrangements are made for the person's care or treatment elsewhere.

(3) If at any time while the person is detained under this section it appears to a custody officer that the detention conditions are no longer met, the person must immediately be discharged from detention under this section.

(4) Subsection (3) does not apply if the transfer conditions in section 145 are met and the person is taken to another place of safety under that section.

(5) See also section 146 (maximum period of detention under this Part).

Sections 142 and 143: the detention conditions

144

(1) This section applies for the purposes of sections 142 and 143.

(2) The detention conditions are that—

(a) failure to detain the person for the permitted purposes would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(b) detaining the person in the place of safety for those purposes is a proportionate response to the likelihood and seriousness of the harm concerned;

(c) because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should remain in the place of safety; and

(d) detention in the place of safety for those purposes is in the person's best interests.

(3) In this section—

“the place of safety” means the hospital or police station to which the person mentioned in section 142(1) or 143(1) has been taken;

“the permitted purposes” means—where the place of safety is a hospital, the purpose mentioned in section 142(2);where the place of safety is a police station, the purpose mentioned in section 143(2)(a) or (b).

Transfer from one place of safety to another

145

(1) At any time while a person is detained in a place of safety under section 142 or 143, the person may be taken by a constable to another place of safety (“the new place of safety”) if the constable reasonably believes that the transfer conditions are met.

(2) The transfer conditions are that—

(a) there is appropriate care or treatment available in the new place of safety which is not available in the place where the person is being detained;

(b) discharging the person from detention rather than taking him or her to the new place of safety would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(c) taking the person to the new place of safety (and not discharging him or her from detention) is a proportionate response to the likelihood and seriousness of the harm concerned;

(d) because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should be taken to the new place of safety; and

(e) taking the person to the new place of safety is in the person's best interests.

(3) Where a person is taken to a hospital under this section, section 142 applies as it applies where a person is taken to a hospital under section 139.

(4) Where a person is taken to a police station under this section, section 143 applies as it applies where a person is taken to a police station under section 139.

(5) In this section “appropriate care or treatment” means care or treatment which is appropriate in the person's case.

Maximum period of detention under Part 9

146

(1) A person removed from a public place under section 139 may not be detained under any provision of this Part after the end of the period of 24 hours beginning with the time of that removal.

(2) The Department of Justice may by regulations amend subsection (1) so as to alter the period mentioned there.

Duties and powers of police where person removed to place of safety

Duty to inform certain persons where power of removal or transfer used

147

(1) This section applies where a constable takes a person (“R”) to a place of safety under section 139 or 145.

(2) The constable must ensure that, as soon as practicable after R arrives at the place of safety, the required information is given to⁠—

(a) the HSC trust in whose area that place of safety is situated;

(b) the appropriate person; and

(c) if the appropriate person does not live with R and it is practicable to give the information to a relevant person who lives with R, such a person.

(3) But if⁠—

(a) it is not practicable to give the required information to the appropriate person, and

(b) it is practicable to give the required information to a relevant person,

subsection (2) has effect as if the reference in paragraph (b) to the appropriate person were to a relevant person.

(4) In this section⁠—

“the appropriate person” means—if R is 16 or over, any person who is R's nominated person;if R is under 16, a person with parental responsibility for R;

“relevant person” means a person who is 16 or over and is—named by R as someone to whom the information should be given;engaged in caring for R; orinterested in R's welfare;

“the required information” has the meaning given by section 148.

Section 147: meaning of “the required information” etc

148

(1) This section supplements section 147.

(2) “The required information” means—

(a) the fact that R has been taken to a place of safety under section 139 or 145;

(b) R's name and address, if known;

(d) the date and time at which R—

(i) was removed from the public place (where the notification relates to a removal under section 139); or

(ii) was taken from the place of safety from which he or she was transferred (where the notification relates to a transfer under section 145);

(e) the circumstances giving rise to R's removal or transfer; and

(f) if the place of safety to which R was taken is a police station, the reason why R was taken there.

(3) Section 147 applies instead of Article 10 of the Criminal Justice (Children) (Northern Ireland) Order 1998 in any case where (but for this subsection) both that section and that Article would apply.

(4) Article 57 of PACE (right to have someone informed when arrested and detained) does not apply in relation to a person detained in a place of safety under this Part.

Record of detention to be kept

149

(1) Where a person is taken to a place of safety under section 139 or section 145 and detained there under section 142 or 143, the appropriate officer (as defined by section 160) must make a written record of the fact that the person has been so detained.

(2) The written record—

(a) must be made as soon as practicable after the decision is made to detain the person under section 142 or 143; and

(b) must be made in the presence of the person, who must at that time be informed by the appropriate officer that he or she is being detained under that section.

(3) Subsection (2)(b) does not apply where, at the time when the written record is made, the person is—

(a) incapable of understanding what is said to him or her;

(b) violent or likely to become violent; or

Responsibilities of the appropriate officer

150

(1) The appropriate officer must ensure that a person who is detained under this Part in a place of safety is treated in accordance with—

(a) any provisions of this Part or PACE that relate to the treatment of persons who are so detained; and

(b) any code of practice under this Act or PACE that relates to the treatment of persons who are so detained.

(2) The appropriate officer must also ensure that all matters relating to a person who is detained under this Part in a place of safety which are required by this Part, PACE or such a code of practice to be recorded in writing are so recorded.

Review of detention

151

(1) Where a person is detained in a place of safety under this Part, reviews of whether the detention conditions set out in section 144(2) are still met must be carried out periodically by the appropriate officer in accordance with this section.

(2) Subject to subsection (3)—

(a) the first review must be not later than 6 hours after the person's arrival at the place of safety;

(b) subsequent reviews must be at intervals of not more than 6 hours.

(3) A review may be postponed—

(a) if, having regard to all the circumstances prevailing at the latest time for it specified in subsection (2), it is not practicable to carry out the review at that time;

(b) if at that time the appropriate officer is not readily available.

(4) If a review is postponed under subsection (3) it must be carried out as soon as practicable after the latest time specified for it in subsection (2).

(5) If a review is carried out after postponement under subsection (3), the fact that it was so carried out does not affect any requirement of this section as to the time at which any subsequent review is to be carried out.

(6) The appropriate officer must record in writing—

(a) any decision made, on a review, to continue to detain the person;

(b) the reasons for any postponement of a review.

(7) A record under subsection (6)(a)—

(a) must be made as soon as practicable after the decision is made; and

(b) must be made in the presence of the person, who must at that time be informed by the appropriate officer of the decision.

(8) Subsection (7)(b) does not apply where the person is, at the time when the written record is made—

(a) incapable of understanding what is said to him or her;

(b) asleep;

(d) in urgent need of medical attention.

(9) Any reference in this section to a period of time is to be treated as approximate only.

Access to legal advice

152

(1) A person who is detained in a place of safety under this Part is entitled, if he or she so requests, to consult a solicitor privately at any time.

(2) If a person makes such a request, he or she must be permitted to consult a solicitor as soon as is practicable.

(3) A request under this section and the time at which it was made must be recorded in writing.

(4) Article 59 of PACE (access to legal advice) does not apply in relation to a person who is detained in a place of safety under this Part.

Searches of person following removal to place of safety

153

Article 55 of PACE (searches of detained persons) applies in relation to a person detained in a place of safety under this Part as if—

(a) in paragraph (1) the reference to a person who has been brought to a police station after being arrested elsewhere were to a person who has been brought to a police station under section 139 or under section 145 (except from another police station);

(b) paragraph (4)(a)(iii) were omitted;

(c) in paragraph (7) the reference to the person mentioned there were to a person detained in a place of safety under this Part.

Searches and examination to ascertain identity

154

Article 55A of PACE (searches and examination to ascertain identity) applies in relation to a person detained in a place of safety under this Part as if—

(a) in paragraph (1) the reference to a person who is detained in a police station were to a person who is detained in any place of safety under this Part;

(b) paragraphs (1)(a), (2), (5) and (9) to (13) were omitted;

Intimate searches

155

Article 56 of PACE (intimate searches) applies in relation to a person detained in a place of safety under this Part as if—

(a) in paragraph (1)(a) the reference to a person who has been arrested and is in police detention were a reference to a person detained in a place of safety under this Part;

(b) in paragraph (1)(a)(ii) the reference to police detention or the custody of a court were a reference to detention under this Part;

Annual records

156

(1) The records that must be kept under Article 50 of PACE include records showing, on an annual basis—

(a) the number of persons detained under this Part in hospitals;

(b) the number of persons detained under this Part in police stations.

(d) the number of children detained under this Part in police stations;

(e) final disposals in respect of children detained as mentioned in paragraphs (c) and (d).

(2) Every annual report under section 58(1) of the Police (Northern Ireland) Act 2000 must contain information about the matters mentioned in subsection (1) in respect of the period to which the report relates.

(3) Regulations may provide that the records to be kept by virtue of subsection (1)(e) are records of such information, in respect of each child who ceases to be detained under this Part, as may be prescribed; and that subsection (2) is to be read accordingly.

(4) In this section “children” means persons under 18.

Supplementary

Principles applying for purposes of Part 9

157

(1) Where for any purpose of this Part a determination falls to be made of whether a person is unable to make a decision for himself or herself about a matter—

(a) the question whether the person is or is not able to make such a decision is to be determined solely by reference to whether the person is or is not able to do the things mentioned in section 4(1)(a) to (d);

(b) the person is not to be treated as unable to make a decision for himself or herself about the matter unless all practicable help and support to enable the person to make such a decision have been given without success;

(c) the person is not to be treated as unable to make a decision for himself or herself about the matter merely because the person makes an unwise decision.

(2) A determination that a person is unable to make a decision, or about what is in a person's best interests, must not be made for any purpose of this Part merely on the basis of—

(a) the person's age or appearance; or

(b) any other characteristic of the person, including any condition that the person has, which might lead others to make unjustified assumptions about the person's ability to make a decision or about what is in the person's best interests.

(3) Where for any purpose of this Part it falls to a person (“the relevant officer”) to determine what would be in the best interests of another person (“R”), the relevant officer—

(a) must consider all the relevant circumstances (that is, all the circumstances of which the relevant officer is aware which it is reasonable to regard as relevant); and

(b) must in particular take the steps in subsections (4) to (8).

(4) The relevant officer must, in determining what would be in R's best interests—

(a) so far as practicable, encourage and help R to participate as fully as possible in that determination; and

(b) have special regard to (so far as they are reasonably ascertainable) R's past and present wishes and feelings.

(5) Where it is practicable for the relevant officer to consult—

(a) a key person (see subsection (7)), or

(b) any other person who is named by R as someone to be consulted or who is engaged in caring for R or interested in R's welfare,

about what would be in R's best interests and in particular about R's past and present wishes and feelings, the relevant officer must, so far as is practicable and appropriate, consult those persons about those questions.

(6) So far as the views of any of those persons about those questions are ascertained, the relevant officer must take those views into account.

(7) In subsection (5) “a key person” means—

(a) if R is 16 or over, any person who is R's nominated person;

(b) if R is under 16, a person with parental responsibility for R.

(8) The relevant officer must, in relation to any removal, detention or transfer that is being considered, have regard to whether the purpose for which it would be carried out can be as effectively achieved in a way that is less restrictive of R's rights and freedom of action.

(9) In consequence of this section, sections 1 to 3 and 5 to 8 (principles, best interests etc) do not apply for the purposes of this Part.

Reasonable belief etc

158

(1) This section applies if, after a person (“the relevant officer”) has removed, detained or transferred another person in reliance on any provision of this Part, any question arises—

(a) whether a particular provision of section 157 was complied with; or

(b) whether a belief of the relevant officer that a condition in section 139(2), 144(2) or 145(2) was met was a reasonable belief.

(2) In deciding that question, regard is to be had in particular to—

(a) the place and other circumstances in which the relevant officer's determination fell to be made; and

(b) in particular, where the relevant officer did not have available to him or her the advice of a medical practitioner or approved social worker, that fact.

(3) Nothing in this section affects the matters to which regard is to be had in deciding any similar question that may arise under any other Part.

Power of constable to use reasonable force

159

Where—

(a) a power is conferred on a constable by virtue of this Part, and

(b) the provision conferring the power does not provide that the power may be exercised only with the consent of a person other than a police officer,

the constable may use reasonable force, if necessary, in the exercise of the power.

Definitions for purposes of Part 9

160

(1) In this Part—

“the appropriate officer”, in relation to a person who is detained in a place of safety, means—where the place of safety is a hospital, the constable who has charge of the person;where the place of safety is a police station, the custody officer at that police station;

“best interests”: see section 157 for provisions about the determination of a person's best interests;

“custody officer”, in relation to a police station, means a person who under PACE is a custody officer, or performing the functions of a custody officer, at that police station;

“PACE” means the Police and Criminal Evidence (Northern Ireland) Order 1989;

“place of safety” means—any hospital whose managing authority is willing temporarily to receive persons who may be taken there under this Part; orany police station;

“public place” means a place to which the public have access;

“unable to make a decision”, and references to enabling a person to make a decision, are to be read in accordance with section 4.

(2) The Department of Justice may by regulations amend the definition of “place of safety” in subsection (1).

(3) Regulations under subsection (2) may make such consequential amendments of this Part as the Department of Justice considers appropriate.

(4) The provision which may be made by virtue of subsection (3) includes, in particular, provision which amends or applies either of sections 142 and 143 or makes provision corresponding to those sections.

(5) For the purposes of sections 147 and 157, where the age of a person is not known, it is to be taken to be the age that the person appears to be.

Relationship of Part 9 to other provisions

161

(1) A power that a constable has under any provision of this Part (a “place of safety power”) does not affect—

(a) any authority that the constable has under Part 2 to do an act other than an act authorised by the place of safety power;

(b) any authority to do any act that a person other than the constable has; or

(2) If, while a person is detained in or being taken to a place of safety under any provision of this Part, the person is arrested for an offence—

(a) the relevant provisions of PACE apply; and

(b) the person ceases to be liable to be detained under this Part or taken to a place of safety under this Part.

(3) Nothing in subsection (2)(b) affects the application of this Part on any subsequent occasion on which the person is found in a public place.

PART 10 — CRIMINAL JUSTICE

CHAPTER 1 — REMAND TO HOSPITAL

Remand to hospital

162

(1) Where—

(a) the Crown Court or a court of summary jurisdiction has power to remand an accused person (“A”) in custody,

(b) the court considers that it would remand A in custody if it did not remand A under this section, and

the court may, instead of remanding A in custody, remand A to a hospital specified by the court.

(2) In this section “the conditions for remand to hospital” means—

(a) the medical report condition (see section 164(1));

(b) the treatment condition (see section 165(1)).

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