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

“enduring power of attorney” means a power of attorney that is an enduring power within the meaning of the Enduring Powers of Attorney (Northern Ireland) Order 1987;

“examination”, in relation to a person, includes an interview with the person for the purpose of ascertaining the person's mental or physical condition or of ascertaining any other matter for the purposes of this Act;

“harm”—except in references to physical or psychological harm, means harm of any kind whether physical or non-physical; andexcept in references to physical harm, includes harm to a person resulting from that person's harming others;

“health record” has the meaning given by section 205 of the Data Protection Act 2018;

“hospital” means any establishment whose main purpose is to provide treatment to people with illness and which—receives such people as in-patients; andis managed by an HSC trust or is an independent hospital in respect of which a person is registered under Part 3 of the 2003 Order;

“HSC trust” means a Health and Social Care trust established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (but does not include the Northern Ireland Ambulance Service Health and Social Care Trust);

“the Human Rights Convention” has the same meaning as “the Convention” in the Human Rights Act 1998;

“illness” includes any injury, disorder or disability requiring treatment or nursing (see subsection (4));

“independent hospital” has the same meaning as in the 2003 Order;

“independent mental capacity advocate” has the meaning given by section 86;

“lacks capacity”: any reference to a person who is 16 or over lacking capacity in relation to a matter is to be read in accordance with sections 1 and 3 to 6, and any reference to such a person having capacity in relation to a matter is to be read accordingly;

“lasting power of attorney” has the meaning given by section 97;

“liable to be detained”: any reference to a person who, by virtue of this Act, is liable to be detained in a place in circumstances amounting to a deprivation of liberty includes—person who is detained in the place in such circumstances, where section 9(2) applies in relation to the detention, anda person who would fall within paragraph (a) if he or she were so detained,whether or not an authorisation under Schedule 1 or 2 is in force in respect of the person;

“life-sustaining treatment” means treatment that in the view of a person providing health care for the person concerned is necessary to sustain life;

“the managing authority”, in relation to a hospital or care home, means—in relation to a hospital managed by an HSC trust, that trust;in relation to an independent hospital, a person registered under Part 3 of the 2003 Order in respect of the hospital;in relation to a care home, a person registered under Part 3 of the 2003 Order in respect of the care home;but paragraphs (b) and (c) are subject to any regulations made under subsection (6).

“making decisions”: references to making decisions, in relation to an attorney under a lasting power of attorney or a deputy appointed by the court, include (where appropriate) acting on decisions made;

“medical practitioner” means a fully registered person within the meaning of the Medical Act 1983 who holds a licence to practise under that Act;

“mental disorder” has the meaning given by section 305;

“the Mental Health Order” means the Mental Health (Northern Ireland) Order 1986;

“nominated person” has the meaning given by section 69;

“parental responsibility” has the same meaning as in the Children (Northern Ireland) Order 1995 (see Article 6 of that Order);

“prescribed” is to be read in accordance with subsection (7);

“property” includes any thing in action and any interest in real or personal property;

“psychosurgery” means any surgical operation for destroying brain tissue or for destroying the functioning of brain tissue;

“public authority” has the same meaning as in the Human Rights Act 1998;

“Public Guardian” has the same meaning as in section 125;

“purchaser” means a purchaser in good faith for valuable consideration and includes a lessee, mortgagee or other person who for valuable consideration acquires an interest in property;

“regulations” is to be read in accordance with subsection (7);

“RQIA” means the Health and Social Care Regulation and Quality Improvement Authority;

“rules of court” means rules of court made under section 55 of the Judicature (Northern Ireland) Act 1978;

“statutory provision” has the meaning given by section 1(f) of the Interpretation Act (Northern Ireland) 1954;

“taking” a person to a place includes returning or transferring the person to that place;

“treatment” includes any examination, any procedure (diagnostic or otherwise), and any therapy;

“the Tribunal” means the Review Tribunal constituted under Article 70 of the Mental Health Order;

“trust corporation” has the same meaning as in the Trustee Act (Northern Ireland) 1958;

“unconnected with”, in relation to a person, is to be read in accordance with section 304;

“working day” means a day that is not—a Saturday or Sunday; ora public holiday.

(2) Regulations prescribing the area of an HSC trust for the purposes of this Act may prescribe, as that area, a specified area and specified premises which are outside that specified area.

(3) The Department may by regulations amend the definition of “HSC trust” in subsection (1).

(4) For the purposes of the definition of “illness” in subsection (1), a disorder, disability or injury of a person “requires” treatment or nursing if it, or any of its symptoms or manifestations, could be alleviated or prevented from worsening by treatment or nursing.

(5) Any reference in this Act to a person who “lacks capacity” (without more) is to be read, in relation to a person who is 16 or over, as a reference to a person who lacks capacity in relation to a matter that is relevant for the purposes of the provision containing the reference.

(6) Regulations may provide that for the purposes of any prescribed provision of this Act, “the managing authority”, in relation to an independent hospital or a care home (“the establishment”)—

(a) means the person registered as the person who manages the establishment;

(b) means the person registered as the person who carries on the establishment; or

“Registered” here means registered under Part 3 of the 2003 Order.

(7) In this Act “regulations” and “prescribed” mean—

(a) in section 126, Part 9 and Part 10 (except section 229), regulations made by the Department of Justice, and prescribed by such regulations;

(b) in any other provision of this Act (except sections 262, 263, 302, 303 and 307 and this subsection), regulations made by the Department, and prescribed by such regulations.

(8) Part 1 (principles) applies in relation to regulations made under any provision of this Act as it applies in relation to that provision.

(9) For the avoidance of doubt, the definition of “act” in section 46(2) of the Interpretation Act (Northern Ireland) 1954 does not apply for the purposes of this Act.

Final provisions

Commencement etc

307

(1) Sections 284, 302, 303(3), 304 to 306, this section and section 308 come into operation on the day after Royal Assent.

(2) The other provisions of this Act come into operation on such day or days as the Department may by order appoint.

(3) Until the coming into operation of section 1 of the Departments Act (Northern Ireland) 2016—

(a) any reference in this Act to the Department of Health is to be read as a reference to the Department of Health, Social Services and Public Safety;

(b) any reference in this Act to the Department of Finance is to be read as a reference to the Department of Finance and Personnel.

(4) The Department or the Department of Justice may by regulations make such transitional, transitory or saving provision as it considers appropriate in connection with the coming into operation of any provision of this Act.

Short title

308

This Act may be cited as the Mental Capacity Act (Northern Ireland) 2016.

SCHEDULE 1

Part 1 — Preliminary

1

(1) In this Schedule—

“appropriate care or treatment”, in relation to a person, means care or treatment which is (or care and treatment which are) appropriate in that person's case;

“community residence requirement”: see section 31;

“the criteria for authorisation”, in relation to a measure mentioned in paragraph 2(2), has the meaning given in relation to that measure by Part 3 of this Schedule;

“proposed”, in relation to a measure, includes proposed to be carried out if particular circumstances arise;

“the relevant trust” has the meaning given by paragraph 2(4).

(2) For the purposes of this Schedule a medical report is made when the completed report is signed by the person making it.

Part 2 — Applications for authorisation

Applications for authorisation

2

(1) An application under this Schedule may be made where one or more measures mentioned in sub-paragraph (2) are proposed in relation to a person who is 16 or over (“P”).

(2) Those measures are—

(a) the provision to P of particular treatment which is relevant treatment (as defined by paragraph 4);

(b) the detention of P in circumstances amounting to a deprivation of liberty in a particular place in which appropriate care or treatment is available for P;

(c) the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given particular treatment that would or might be treatment with serious consequences (“an attendance requirement”);

(d) the imposition on P of a community residence requirement.

(3) An application under this Schedule is an application to the relevant trust for authorisation of one or more measures mentioned in sub-paragraph (2) which are proposed.

(4) In this Schedule “the relevant trust” means—

(a) if the application requests authorisation of the detention of P in a particular place in circumstances amounting to a deprivation of liberty, the HSC trust in whose area the place is situated;

(b) if the application requests authorisation of the provision of particular treatment or authorisation of an attendance requirement, and head (a) does not apply, the HSC trust in whose area the treatment would be provided;

(c) if the application requests authorisation of a community residence requirement and head (b) does not apply, the HSC trust in whose area the place where P would be required by the community residence requirement to live is situated.

Applications: supplementary

3

(1) An application may not be made for authorisation of the detention of P in a hospital where the proposed detention could be authorised under Schedule 2 (short-term detention for examination etc).

(2) But sub-paragraph (1) does not apply if the application also requests authorisation of another measure or measures mentioned in paragraph 2(2).

(3) An application may be made in respect of a person who is under 16 but who will be 16 or over when the proposed measure would be carried out.

(4) An application may be made in respect of a measure or measures mentioned in paragraph 2(2) where the measure, or any of the measures, has already begun (for example, because it was begun in an emergency) and is proposed to be continued.

(5) For the purposes of paragraph 2(2)(b) it does not matter whether P is or is not already resident in the place (or, if the place is a hospital, an in-patient in the hospital) at the time when the detention is proposed.

(6) Regulations may provide that an application for authorisation of the detention of P in circumstances amounting to a deprivation of liberty in a particular place—

(a) may be made only if the place is of a prescribed description; or

(b) may not be made if the place is of a prescribed description.

(7) In this paragraph “application” means an application under this Schedule.

Paragraph 2: meaning of “relevant treatment”

4

For the purposes of paragraph 2 treatment which is proposed to be provided to P is “relevant treatment” if—

(a) it would or might be treatment with serious consequences (see section 21);

(b) the applicant reasonably believes that P lacks capacity in relation to the treatment; and

(i) P's nominated person has reasonably objected to the proposal to provide the treatment and has not withdrawn that objection; or

(ii) the applicant reasonably believes that it is likely that the provision of the treatment would be such that authorisation is needed by reason of section 20 (resistance etc by P to provision of certain treatment).

Who may make application

5

(1) Any application under this Schedule must be made by a person who—

(a) is of a prescribed description; and

(b) is unconnected with P (see section 304).

(2) Regulations under sub-paragraph (1)(a) may in particular prescribe, as a description of persons who may make an application under this Schedule—

(a) an approved social worker;

(b) a person of a prescribed description who is designated by the managing authority of a hospital or care home in which P is an in-patient or resident as a person who may make applications under this Schedule;

(c) a person of a prescribed description who is designated by an appropriate person (as defined by the regulations) as a person who may make applications under this Schedule.

Contents of application

6

(1) An application under this Schedule must—

(a) be in the prescribed form;

(b) include a medical report (see paragraph 7);

(d) include prescribed information about the views, on prescribed matters, of P's nominated person and any prescribed person; and

(e) include any other prescribed information.

(2) If—

(a) the application requests authorisation of a measure within paragraph 2(2)(b) or (d) (deprivation of liberty or community residence requirement), and

(b) in the opinion of the person making the application, if the measure were authorised under paragraph 15, P would lack (or would probably lack) capacity in relation to whether an application under section 45 in respect of the authorisation should be made,

the application must contain a statement of that opinion.

Medical report

7

(1) The medical report must be in the prescribed form and must—

(a) be made by a medical practitioner who is unconnected with P and is permitted by regulations under section 300 to make the report;

(b) include the required statement; and

(2) The “required statement” is a statement by the person making the medical report that—

(a) in that person's opinion, the criteria for authorisation are met in relation to the measure for which the application requests authorisation; or

(b) if the application requests authorisation for more than one measure, in that person's opinion the criteria for authorisation are met in relation to each such measure.

(3) The criteria for authorisation are set out in Part 3 of this Schedule.

(4) The maker of the medical report must have examined P not more than two days before the date when the report is made.

(5) See also sections 54 and 55 (involvement of nominated person and independent mental capacity advocate).

Care plan

8

The care plan must be in the prescribed form and must include—

(a) prescribed information about the measure or measures for which the application requests authorisation;

(b) such other information relating to what is proposed as may be prescribed.

Part 3 — The criteria for authorisation

Criteria for treatment

9

(1) In relation to the provision to P of particular treatment, the criteria for authorisation are—

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

(b) that it would be in P's best interests to have the treatment; and

(c) if P's nominated person has reasonably objected to the proposal to provide the treatment and has not withdrawn that objection, that the prevention of serious harm condition is met.

(2) The prevention of serious harm condition is—

(a) that failure to provide the treatment to P would create a risk of serious harm to P or of serious physical harm to other persons; and

(b) that carrying out the treatment would be a proportionate response to—

(i) the likelihood of harm to P, or of physical harm to other persons; and

(ii) the seriousness of the harm concerned.

(3) Subsections (2) and (3) of section 22 (situations where there is a choice of treatments) apply for the purposes of sub-paragraph (2).

Criteria for detention amounting to deprivation of liberty

10

In relation to detention of P in a place in circumstances amounting to a deprivation of liberty, the criteria for authorisation are that—

(a) appropriate care or treatment is available for P in the place in question;

(b) failure to detain P in circumstances amounting to a deprivation of liberty in a place in which appropriate care or treatment is available for P would create a risk of serious harm to P or of serious physical harm to other persons;

(c) detaining P in the place in question in circumstances amounting to a deprivation of liberty would be a proportionate response to—

(i) the likelihood of harm to P, or of physical harm to other persons; and

(ii) the seriousness of the harm concerned;

(d) P lacks capacity in relation to whether he or she should be detained in the place in question; and

(e) it would be in P's best interests to be so detained.

Criteria for requirement to attend for treatment

11

In relation to the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given particular treatment that would or might be treatment with serious consequences, the criteria for authorisation are that—

(a) failure to impose such a requirement would be more likely than not to result in P's not receiving the treatment;

(b) P lacks capacity in relation to whether he or she should attend for the purpose of being given the treatment at the place and times or intervals concerned; and

(c) a requirement to attend for that purpose at the place and times or intervals concerned would be in P's best interests.

Criteria for community residence requirement

12

In relation to the imposition on P of a community residence requirement, the criteria for authorisation are that—

(a) failure to impose a community residence requirement would create a risk of harm to P;

(b) imposing such a requirement would be a proportionate response to—

(i) the likelihood of harm to P; and

(ii) the seriousness of the harm concerned;

(d) any services which, under regulations under section 33, are required to be available to people subject to community residence requirements are available in the area in which P would be required by the community residence requirement to live; and

(e) the community residence requirement would be in P's best interests.

Measures proposed to be carried out only if particular circumstances arise

13

In applying the criteria in this Part of this Schedule in a case where a measure is proposed to be carried out only if particular circumstances arise, any question—

(a) whether the measure would be in P's best interests,

(b) whether failure to carry out the measure would create a particular risk, or

is to be decided on the basis of what the situation would be if those circumstances arose.

Part 4 — Decision on application

Panel to consider application

14

(1) Where the relevant trust receives an application duly made under this Schedule, it must as soon as practicable—

(a) give prescribed information to P and any prescribed person; and

(b) constitute a panel to consider the application.

(2) See also section 297 (general provision about panels).

Decision on application

15

(1) Having considered the application, the panel must—

(a) authorise the measure mentioned in paragraph 2(2)(a) to (d) for which the application requests authorisation (or, if the application requests authorisation of more than one such measure, authorise each of those measures or such one or more of them as may be specified in the authorisation); or

(b) refuse to grant an authorisation under this paragraph.

(2) If a measure authorised under sub-paragraph (1)(a) is the provision to P of particular treatment, the authorisation may also include authorisation of a measure mentioned in paragraph 2(2)(b) to (d) authorisation of which was not requested by the application.

(3) Sub-paragraph (2) applies whether or not the application requested authorisation of any other measure mentioned in paragraph 2(2)(b) to (d).

(4) Paragraphs 16 to 18 contain provision supplementing this paragraph.

(5) The panel may authorise a measure under this paragraph only if it considers that the criteria for authorisation are met in relation to that measure.

(6) An authorisation granted under this paragraph—

(a) takes effect from the time when the authorisation is granted; and

(b) expires (unless previously revoked) at the end of the period of 6 months beginning with the date when the authorisation is granted;

but this is subject to Chapter 6 of Part 2 of this Act (extension of period of authorisation).

(7) An authorisation under this paragraph may be expressed so as to authorise a measure to be carried out if circumstances specified in the authorisation arise.

Specifying detention amounting to deprivation of liberty

16

(1) This paragraph applies where an authorisation under paragraph 15 authorises P's detention in a place in circumstances amounting to a deprivation of liberty.

(2) The authorisation must specify—

(a) the purposes for which P may be detained in circumstances amounting to a deprivation of liberty; and

(b) the place in which P may be so detained.

(3) The authorisation may authorise P to be detained for a specified purpose in one place and for other specified purposes in another place.

(4) Any purpose specified under this paragraph must relate to the risk mentioned in paragraph 10(b) (for example, if that risk is of serious harm to P from a disorder, a purpose specified may be the purpose of ensuring that P receives treatment for the disorder).

Specifying requirement to attend for treatment

17

Where an authorisation under paragraph 15 authorises the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given specified treatment, the authorisation—

(a) may either specify the place or authorise it to be such place as the medical practitioner in charge of the treatment may direct;

(b) may either specify the times or intervals or authorise them to be such times or intervals as that medical practitioner may direct.

Specifying community residence requirement

18

(1) This paragraph applies where an authorisation under paragraph 15 authorises the imposition on P of a community residence requirement.

(2) A community residence requirement which is in accordance with the authorisation may (subject to the provisions of this Act) be imposed on P by the HSC trust to which the application under this Schedule was made (“the trust”).

(3) The authorisation must specify, in accordance with the following provisions of this paragraph, the terms of the community residence requirement that may be imposed by the trust under the authorisation.

(4) The authorisation must provide either—

(a) that the trust may require P to live at a place specified by the authorisation; or

(b) that the trust may require P to live at such place as may be specified by the trust.

(5) The authorisation may include either or both of the following provisions—

(a) provision that if the trust imposes the requirement authorised under sub-paragraph (4), the trust may also require P to allow a healthcare professional specified by the trust access to P, at reasonable times required by that professional, at a place where P is living;

(b) provision that if the trust imposes the requirement authorised under sub-paragraph (4), the trust may also require P to attend at particular places and times or intervals for the purpose of training, education, occupation or treatment.

(6) Where by virtue of sub-paragraph (5)(b) the authorisation includes provision authorising a requirement for P to attend at a particular place at particular times or intervals, the authorisation—

(a) may either specify the place or authorise it to be such place as the trust may specify; and

(b) may either specify the times or intervals or authorise them to be such times or intervals as the trust may specify.

(7) In this paragraph—

“healthcare professional” means a person of a description prescribed under section 31(3);

“treatment” is to be read in accordance with section 31(4).

Time limit for panel's decision, and duty to notify decision

19

(1) The panel must comply with paragraph 15(1) as soon as practicable and in any case no later than the end of the permitted period.

(2) The “permitted period” is (subject to paragraph 20) the period of 7 working days 28 working days beginning with the day on which the application is received by the trust (or, if that day is not a working day, beginning with the first working day after that).

(3) As soon as practicable after granting or refusing an authorisation under paragraph 15, the panel must give to P and any prescribed person—

(a) written notice of the grant or refusal; and

(b) any prescribed information.

(4) Regulations under sub-paragraph (3) must ensure that the Attorney General is given notice in any case where—

(a) the panel grants an authorisation that authorises a measure within paragraph 2(2)(b) or (d) (deprivation of liberty or community residence requirement); and

(b) the application under this Schedule contained the statement mentioned in paragraph 6(2) (statement that P lacks, or probably lacks, capacity in relation to making of Tribunal application).

Interim authorisations

20

(1) If at any time before the end of the period mentioned in paragraph 19(2) the panel considers—

(a) that it will not be possible within that period to decide whether the criteria for authorisation are met in respect of a measure proposed in the application, but

(b) that there is a good prospect of it being established that the criteria for authorisation are met in respect of the measure,

the panel may grant an interim authorisation.

(2) The power of the panel to grant an interim authorisation is power to grant an authorisation which—

(a) does as mentioned in paragraph 15(1)(a); but

(b) is expressed to have effect only until the end of the period of 28 days 56 days beginning with the date on which the interim authorisation is granted.

(3) Accordingly, an interim authorisation—

(a) takes effect from the time when the authorisation is granted; and

(b) expires (unless previously revoked) at the end of the period of 28 days 56 days beginning with the date on which it is granted.

(4) Paragraphs 15(2), (3) and (7) and 16 to 18 apply in relation to an interim authorisation as they apply in relation to an authorisation under paragraph 15.

(5) Where the panel grants an interim authorisation in relation to an application under this Schedule—

(a) the period within which the panel must grant or refuse an authorisation under paragraph 15 in respect of the application is 28 days 56 days beginning with the date on which the interim authorisation is granted; and

(b) the grant or refusal of an authorisation under paragraph 15 in respect of the application revokes the interim authorisation.

(6) As soon as practicable after granting an interim authorisation, the panel must give written notice of the grant, and any prescribed information, to P and any prescribed person.

(7) Regulations under sub-paragraph (6) must ensure that the Attorney General is given notice in any case where—

(a) the panel grants an interim authorisation that authorises a measure within paragraph 2(2)(b) or (d) (deprivation of liberty or community residence requirement); and

(b) the application under this Schedule contained the statement mentioned in paragraph 6(2) (statement that P lacks, or probably lacks, capacity in relation to making of Tribunal application).

Part 5 — Matters covered by authorisation etc

Treatment: what is covered by authorisation

21

(1) Sub-paragraph (2) applies where an authorisation under this Schedule authorises the provision to P of treatment specified by the authorisation.

(2) As well as authorising the provision of that treatment to P, the authorisation authorises the provision to P of—

(a) any part of the treatment concerned;

(b) the treatment concerned, or any part of it, with such modifications as the medical practitioner in charge of P's treatment may reasonably consider to be in P's best interests.

(3) Sub-paragraph (4) applies where an authorisation under this Schedule authorises the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment specified by the authorisation.

(4) As well as authorising the imposition of such a requirement, the authorisation authorises the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment mentioned in sub-paragraph (2)(a) or (b).

(5) Any reference in this Part of this Act to treatment “specified by” an authorisation is to be read as including treatment mentioned in sub-paragraph (2)(a) or (b).

Detention: what is covered by authorisation

22

(1) This paragraph applies where an authorisation under this Schedule authorises the detention of P in a specified place for specified purposes.

(2) As well as authorising that detention, the authorisation authorises any related detention that may occur while the authorisation is in force.

(3) In sub-paragraph (2) “related detention” means—

(a) any detention of P in the specified place at a time when the detention is partly for the purposes specified in the authorisation and partly for other purposes relating to P's care or treatment;

(b) any detention of P while P is being taken to the specified place; and

(i) the detention is in pursuance of a condition imposed on P that relates to permission given to P to be absent from the specified place for a particular period or a particular occasion;

(ii) the imposition of the condition is an act to which section 9(2) applies; and

(iii) the detention is for no longer than 7 days.

(4) In this paragraph “detention” means detention in circumstances amounting to a deprivation of liberty.

(5) Nothing in the authorisation or this paragraph affects the operation of this Part of this Act in relation to any detention of P in circumstances not amounting to a deprivation of liberty.

Effect of discharge from detention

23

(1) Where—

(a) an authorisation under this Schedule authorises the detention of P in circumstances amounting to a deprivation of liberty, and

(b) P is discharged from detention,

the authorisation ceases to authorise any detention of P.

(2) For the purposes of this paragraph P is “discharged from detention” if a person with authority to discharge P from detention informs P in writing that he or she is discharged from detention.

Power to vary or revoke requirements etc imposed under authorisation

24

Any power conferred by virtue of an authorisation under this Schedule to impose a requirement or give a direction includes power to vary or revoke the requirement or direction (but not in such a way as to result in a requirement that is not permitted by the authorisation).

Effect of authorisation on previous authorisations

25

(1) The grant of an interim authorisation under this Schedule revokes any authorisation under Schedule 2 in respect of P which is in force immediately before the grant of the interim authorisation; but this is subject to sub-paragraph (2).

(2) The panel which grants the interim authorisation may, when it makes the grant, also decide that the authorisation under Schedule 2 is not revoked by the grant.

26

(1) The grant of an authorisation under paragraph 15 (“the later authorisation”), as well as revoking any interim authorisation relating to the same application, revokes any relevant earlier authorisation; but this is subject to sub-paragraph (3).

(2) In this paragraph a “relevant earlier authorisation” means—

(a) any authorisation under Schedule 2 in respect of P, or

(b) any authorisation under paragraph 15 in respect of P,

which is in force immediately before the grant of the later authorisation.

(3) The panel which grants the later authorisation may, when it makes the grant, also decide that—

(a) a relevant earlier authorisation specified by the panel, or

(b) a specified provision of such an authorisation,

is not revoked by the grant.

Relationship with other conditions

27

For the avoidance of doubt, the fact that a particular measure is authorised by an authorisation under this Schedule does not affect the need for the other conditions of this Part of this Act that apply to be met in respect of any act that is, or is part of, that measure.

SCHEDULE 2

Part 1 — Preliminary

1

(1) In this Schedule—

“the criteria for authorisation” has the meaning given by paragraph 2(3);

“the responsible medical practitioner”, in relation to a person who is an in-patient in a hospital, means the medical practitioner who is in charge of the person's care in the hospital (see also sub-paragraphs (2) and (3)).

(2) Regulations may provide that the medical practitioner in charge of a person's care in a hospital may carry out prescribed functions of the responsible medical practitioner under this Schedule only if prescribed conditions are met.

(3) A condition that may be prescribed under sub-paragraph (2) is that the practitioner is approved by RQIA for prescribed purposes.

(4) For the purposes of this Schedule a report is made when the completed report is signed by the person making it.

(5) Where a report under paragraph 2 is made in respect of a person who is already an in-patient in the hospital specified in the report, the person is to be treated for the purposes of this Schedule as if admitted to the hospital at the time the report was made.

Part 2 — The authorisation

Authorisation of detention in hospital for examination etc

2

(1) The detention of a person in a hospital in circumstances amounting to a deprivation of liberty, for the purposes of examination (or of examination followed by other treatment or care), may be authorised by the making of a report under this paragraph.

(2) An appropriate healthcare professional (as defined by paragraph 3) may make a report under this paragraph in respect of a person who is 16 or over (“P”) if, in the opinion of the appropriate healthcare professional, the criteria for authorisation are met.

(3) The criteria for authorisation are that—

(a) P has an illness or there is reason to suspect that P has an illness;

(b) failure to detain P in a hospital in circumstances amounting to a deprivation of liberty, for the purposes of examination or of examination followed by other treatment or care, would create a risk of serious harm to P or of serious physical harm to other persons;

(c) detaining P in the hospital in circumstances amounting to a deprivation of liberty, for those purposes, would be a proportionate response to—

(i) the likelihood of harm to P, or of physical harm to other persons; and

(ii) the seriousness of the harm concerned;

(d) P lacks capacity in relation to whether he or she should be so detained; and

(e) it would be in P's best interests for him or her to be so detained.

(4) A report under this paragraph must be in the prescribed form and must—

(a) include a medical report (see paragraph 4);

(b) include a statement by the appropriate healthcare professional that in his or her opinion the criteria for authorisation are met;

(c) include prescribed information about the views, on prescribed matters, of P's nominated person and any prescribed person;

(d) include any other prescribed information; and

(e) state that the report authorises the detention, in circumstances amounting to a deprivation of liberty, of P in a specified hospital for the purposes of examination or of examination followed by other treatment or care.

(5) If the appropriate healthcare professional is of the opinion that P lacks (or probably lacks) capacity in relation to whether an application under section 45 (applications to Tribunal) should be made in respect of the authorisation granted by the making of the report under this paragraph, the report must contain a statement of that opinion.

(6) In this paragraph “examination” includes further examination.

Who may make a report under paragraph 2

3

(1) In paragraph 2 “an appropriate healthcare professional” means a person who—

(a) is of a prescribed description; and

(b) is unconnected with P (see section 304).

(2) The descriptions of person who may be prescribed under this paragraph include in particular—

(a) an approved social worker;

(b) a person of a prescribed description who is designated by the managing authority of the hospital specified in the report under paragraph 2 as a person who may make reports under that paragraph.

Medical report

4

(1) The medical report included in a report under paragraph 2 must be in the prescribed form and must—

(a) be made by a medical practitioner who is unconnected with P and is permitted by regulations under section 300 to make the report;

(b) include a statement by the person making the medical report that in that person's opinion the criteria for authorisation are met; and

(2) The maker of the medical report must have examined P not more than two days five days before the date when the medical report is made.

(3) See also sections 54 and 55 (involvement of nominated person and independent mental capacity advocate).

Consultation required before report authorising detention is made

5

A person may make a report under paragraph 2 only if the person has personally seen P not more than two days five days before the date on which that report is made.

6

(1) Where—

(a) it is proposed to make a report under paragraph 2, and

(b) P's nominated person objects to the making of the report,

a person may make a report under paragraph 2 in respect of P only if the person has consulted an approved social worker. only if—

(a) the person has consulted an approved social worker, or

(b) the person considers that it is impractical or would involve undesirable delay to consult an approved social worker, the person has consulted a relevant social worker.

(2) This applies even if the person making the report under paragraph 2 is an approved social worker.

Information to be given where report authorising detention is made

7

(1) Where a report under paragraph 2 is made, the person who made the report must as soon as practicable give prescribed information to—

(a) the managing authority of the hospital specified in the report; and

(b) any prescribed person.

(2) Regulations under sub-paragraph (1) must ensure that where a report containing the statement mentioned in paragraph 2(5) is made, the Attorney General is notified of that fact.

Duration of authorisation: preliminary

8

(1) An authorisation granted by the making of a report under paragraph 2—

(a) takes effect from the time the report is made; and

(b) expires (if not previously revoked) when an event which terminates the authorisation occurs (or, if more than one such event occurs, on the occurrence of the first of those events).

(2) “An event which terminates the authorisation” is to be read in accordance with Part 3 of this Schedule.

Part 3 — Events terminating the authorisation

Expiry where failure to admit P within period required

9

(1) If—

(a) at the time when a report under paragraph 2 is made P is not already an in-patient in the hospital specified in the report, and

(b) at the end of the period allowed for admission P has not been admitted to that hospital,

the expiry of that period is an event which terminates the authorisation.

(2) In this paragraph “the period allowed for admission” means—

(a) two days beginning with the date when the medical report under paragraph 4 was made; or

(b) such longer period, not exceeding 14 days beginning with that date, as a medical practitioner who meets prescribed conditions may (before the end of the period mentioned in head (a)) certify to be necessary because of exceptional circumstances.

(3) A certificate under sub-paragraph (2)(b) must be in the prescribed form and include prescribed information.

Expiry where failure to give P certain information

10

(1) This paragraph applies if—

(a) pursuant to a report under paragraph 2, P is admitted to the hospital specified in the report; or

(b) P is treated under paragraph 1(5) as so admitted.

(2) If P is not given prescribed information by the managing authority of the hospital as soon as practicable after the admission or deemed admission, the failure to give P that information is an event which terminates the authorisation.

Expiry where failure to examine and report on P on admission

11

(1) This paragraph applies where—

(a) pursuant to a report under paragraph 2, P is admitted to the hospital specified in the report; or

(b) P is treated under paragraph 1(5) as so admitted.

(2) Immediately after being admitted or treated as admitted, P must be examined by a medical practitioner who—

(a) is within sub-paragraph (3); and

(b) did not make the medical report under paragraph 4.

(3) The medical practitioners are—

(a) the responsible medical practitioner;

(b) another medical practitioner who meets prescribed conditions; or

(4) A medical practitioner carrying out an examination under this paragraph must immediately make a report in the prescribed form of the examination.

(5) The report must include a statement by the person making the report as to whether, in that person's opinion, the condition in paragraph 12 is met.

(6) If the report states that in the opinion of the person making the report that condition is not met, the making of the report is an event which terminates the authorisation.

(7) A person who makes a report under this paragraph must immediately give the report to the managing authority of the hospital.

(8) If there is a failure to examine P in accordance with sub-paragraph (2), or to make a report in accordance with sub-paragraphs (4) and (5), the failure is an event which terminates the authorisation.

The condition for detention

12

(1) This paragraph applies for the purposes of paragraphs 11, 13 and 14.

(2) The condition referred to in those paragraphs is that—

(a) failure to detain P in the hospital in circumstances amounting to a deprivation of liberty, for the purposes of further care, would create a risk of serious harm to P or of serious physical harm to other persons;

(b) detaining P in the hospital in circumstances amounting to a deprivation of liberty, for those purposes, is a proportionate response to—

(i) the likelihood of harm to P, or of physical harm to other persons; and

(ii) the seriousness of the harm concerned;

(d) it would be in P's best interests for him or her to be so detained.

(3) In sub-paragraph (2) “further care” means such one or more of the following as are appropriate in P's case—

(a) further examination;

(b) the provision to P of other treatment or care.

Expiry where no examination and report by suitable medical practitioner within required time

13

(1) This paragraph applies where—

(a) a report under paragraph 11 (an “admission report”) has been made;

(b) the admission report was not such as to terminate the authorisation; and

(c) the admission report was made by a practitioner within paragraph 11(3)(c) (and not within paragraph 11(3)(a) or (b)).

(2) If, at the end of 48 hours from the time when the admission report was made, a suitable medical practitioner has not examined P and made a report in accordance with sub-paragraphs (4) and (5), the expiry of that period is an event which terminates the authorisation.

(3) In this paragraph “a suitable medical practitioner” means—

(a) the responsible medical practitioner; or

(b) if it is not practicable for that practitioner to carry out the examination under this paragraph, another medical practitioner who meets prescribed conditions.

(4) A medical practitioner carrying out an examination under this paragraph must immediately make a report in the prescribed form of the examination.

(5) The report must include a statement by the person making the report as to whether, in that person's opinion, the condition in paragraph 12 is met.

(6) If the report states that in the opinion of the person making the report that condition is not met, the making of the report is an event which terminates the authorisation.

(7) A person who makes a report under this paragraph must immediately give the report to the managing authority of the hospital.

Expiry where no further examination and report on P within 14 days

14

(1) This paragraph applies where—

(a) either of the following has been made—

(i) a report under paragraph 11 by a practitioner within paragraph 11(3)(a) or (b); or

(ii) a report under paragraph 13; and

(b) the report was not such as to terminate the authorisation.

(2) If at the end of 14 days beginning with the date of admission a suitable medical practitioner has not examined P and made a further report in accordance with sub-paragraphs (5) and (6), the expiry of that period is an event which terminates the authorisation.

(3) In this paragraph “the date of admission” means the date when the report under paragraph 11 was made (whether or not that report was made as mentioned in sub-paragraph (1)(a)(i)).

(4) In this paragraph “a suitable medical practitioner” means—

(a) the responsible medical practitioner; or

(b) if it is not practicable for that practitioner to carry out the examination under this paragraph, another medical practitioner meeting prescribed conditions.

(5) A medical practitioner carrying out an examination under this paragraph must immediately make a report in the prescribed form of the examination.

(6) The report must include a statement by the person making the report as to whether, in that person's opinion, the condition in paragraph 12 is met.

(7) If the report states that in the opinion of the person making the report that condition is not met, the making of the report is an event which terminates the authorisation.

(8) A person who makes a report under this paragraph must immediately give the report to the managing authority of the hospital.

Expiry 14 days after date of further report

15

(1) This paragraph applies where a report under paragraph 14 has been made and the report was not such as to terminate the authorisation.

(2) The expiry of the remaining period allowed is an event which terminates the authorisation.

(3) “The remaining period allowed” is the period of 14 days beginning with the day after the date the report under paragraph 14 is made.

Discharge

16

(1) If—

(a) pursuant to a report under paragraph 2, P is admitted to the hospital specified in the report, or

(b) P is treated under paragraph 1(5) as so admitted,

and P is subsequently discharged from detention, that discharge is an event which terminates the authorisation.

(2) For the purposes of this paragraph P is “discharged from detention” if P is informed in writing by the responsible medical practitioner that he or she is discharged from detention.

Unreasonable delay in taking certain steps

17

(1) If—

(a) pursuant to a report under paragraph 2, P is admitted to the hospital specified in the report, or

(b) P is treated under paragraph 1(5) as so admitted,

and subsequently there is an unreasonable delay in taking a relevant step, the start of that delay is an event which terminates the authorisation.

(2) In this paragraph a “relevant step” means making an application under Schedule 1 where a measure that would need authorisation under that Schedule is proposed in relation to P.

Part 4 — Supplementary provisions

Detention covered by authorisation

18

(1) This paragraph applies where a report is made under paragraph 2.

(2) The authorisation granted by the making of the report authorises—

(a) the detention (at any time when the authorisation is in force) of P in the hospital specified in the report for the purposes of examination, or of any treatment or care following examination;

(b) any related detention which may occur while the authorisation is in force.

(3) In sub-paragraph (2) “related detention” means—

(a) any detention of P while P is being taken to the hospital specified in the report;

(b) any detention of P while P is absent from the hospital, if the detention—

(i) is in pursuance of a condition imposed in accordance with section 27 (permission for absence from hospital); and

(ii) is for no longer than 7 days.

(4) In sub-paragraphs (2) and (3) “detention” means detention in circumstances amounting to a deprivation of liberty.

(5) Nothing in the authorisation or this paragraph affects the operation of this Part of this Act in relation to any detention of P in circumstances not amounting to a deprivation of liberty.

Relationship with other conditions

19

Rectification of reports: correction of administrative errors

20

(1) Where a report under this Schedule is incorrect or defective in any respect as a result of an administrative error, the appropriate person may (subject to sub-paragraph (3)) amend the report for the purpose of correcting the error.

(2) “The appropriate person”, in relation to a report (“the relevant report”), means—

(a) if the relevant report is a report under paragraph 2 and the amendment is to the medical report included in the relevant report, the person who signed the medical report;

(b) otherwise, the person who signed the relevant report.

(3) An amendment under this paragraph may be made only—

(a) with the consent of the managing authority of the hospital specified in the report; and

(b) before the end of the permitted period.

(4) Where an amendment under this paragraph is made to a report, the report is to have effect, and to be treated as always having had effect, as if it had been originally made as so amended.

(5) In this paragraph “the permitted period” means the period of 28 days beginning with the date of admission (as defined by paragraph 14(3)).

Rectification of reports: substitution of medical reports

21

(1) This paragraph applies where—

(a) a report under paragraph 2 (“the authorisation report”) has been made; and

(b) at any time before the end of the permitted period it appears to the managing authority that the medical report included in the authorisation report does not comply with the requirements of paragraph 4.

(2) The managing authority may, before the end of the permitted period, give notice in writing to that effect to the person who signed the authorisation report.

(3) Where any such notice is given, the medical report is to be disregarded.

(4) But if, before the end of the permitted period—

(a) a fresh medical report is made in accordance with paragraph 4, and

(b) the fresh report states that in the opinion of the person making the report the condition in paragraph 12 is met, and has been met at all times since the making of the medical report mentioned in sub-paragraph (1)(b),

the authorisation report is valid, and is to be treated as always having been valid.

(5) Nothing in this paragraph limits the application of paragraph 20.

(6) In this paragraph—

“the managing authority” means the managing authority of the hospital specified in the authorisation report;

“the permitted period” has the same meaning as in paragraph 20.

22

(1) This paragraph applies where—

(a) a report under paragraph 2 (“the authorisation report”) has been made in respect of a person (“P”); and

(b) at any time before the end of the permitted period, it appears to the managing authority that a report under paragraph 11, 13 or 14 made in respect of P (“the original report”) does not comply with the requirements of that paragraph (“the relevant paragraph”).

(2) The managing authority may, before the end of the permitted period, give notice in writing to that effect to the person who signed the authorisation report.

(3) Where any such notice is given, the original report is to be disregarded.

(4) But if, before the end of the permitted period—

(a) P is examined, and a fresh report is made, in accordance with the requirements of the relevant paragraph (except any requirements as to the timing of the examination or report), and

(b) the fresh report states that in the opinion of the person making the report the condition in paragraph 12 is met, and has been met at all times since the making of the original report,

the authorisation has effect, and is treated as always having had effect, as if it had not expired by virtue of the relevant paragraph.

(5) Nothing in this paragraph limits the application of paragraph 20.

(6) In this paragraph—

“the managing authority” has the same meaning as in paragraph 21;

“the permitted period” has the same meaning as in paragraph 20.

SCHEDULE 3

Preliminary

1

In this Schedule—

“authorisation” is defined by section 37;

“authorised measure” and “measure” are defined by section 41(1) and (2);

“the criteria for continuation” is defined by section 41(3) and (4);

“the current period” of an authorisation means the period of the authorisation at the time the application under this Schedule is made;

“the period” and “the initial period” of an authorisation are defined by section 37;

“the relevant trust” has the meaning given by paragraph 2(3).

Applications for extension

2

(1) An application under this Schedule may be made where—

(a) an authorisation in respect of a person (“P”) has been granted (and has not been revoked);

(b) the period of the authorisation has not ended;

(d) an extension under that section is not possible, because the person who is the responsible person for the purposes of section 39 is not of the opinion that the criteria for continuation are met in relation to each authorised measure that is proposed to be continued after the end of the current period.

(2) An application under this Schedule is an application to the relevant trust for an extension of the period of the authorisation.

(3) In this Schedule “the relevant trust” means—

(a) where the proposed extension would be wholly or partly for the purposes of continuing P's detention in a place, the HSC trust in whose area that place is situated;

(b) where the proposed extension would be wholly or partly for the purposes of continuing the provision to P of treatment specified by the authorisation or a requirement to attend for such treatment, and head (a) does not apply, the HSC trust in whose area the treatment is provided;

(c) where the proposed extension would be for the purposes of continuing a community residence requirement and head (b) does not apply, the HSC trust in whose area the place where P is required by the community residence requirement to live is situated.

Who may make application

3

(1) Any application under this Schedule must be made by a person who—

(a) is of a prescribed description; and

(b) is unconnected with P (see section 304).

(2) Regulations under sub-paragraph (1)(a) may in particular prescribe, as a description of persons who may make an application under this Schedule—

(a) an approved social worker;

(b) a person of a prescribed description who is designated by the managing authority of a hospital or care home in which P is an in-patient or resident as a person who may make applications under this Schedule;

(c) a person of a prescribed description who is designated by an appropriate person (as defined by the regulations) as a person who may make applications under this Schedule.

Contents of application

4

(1) An application under this Schedule must—

(a) be in the prescribed form;

(b) specify the authorised measure (or, if more than one, each authorised measure) that is proposed to be continued after the end of the current period;

(d) include a care plan (see paragraph 6);

(e) include prescribed information about the views, on prescribed matters, of P's nominated person and any prescribed person; and

(f) include any other prescribed information.

(2) If—

(a) the application specifies a measure within section 41(2)(b) or (d) (deprivation of liberty or community residence requirement), and

(b) the person making the application is of the opinion that, if the period of the authorisation were extended, P would lack (or would probably lack) capacity in relation to whether an application under section 45 (applications to Tribunal) should be made,

the application must contain a statement of that opinion.

Medical report

5

(1) The medical report must be in the prescribed form and must—

(a) be made by a medical practitioner who is unconnected with P and is permitted by regulations under section 300 to make the report;

(b) include a statement by the medical practitioner that, in his or her opinion, the criteria for continuation are met in respect of each measure specified under paragraph 4(1)(b); and

(2) The medical practitioner must have examined P not more than two days before the date when the report is made.

(3) See also sections 54 and 55 (involvement of nominated person and independent mental capacity advocate).

Care plan

6

The care plan must be in the prescribed form and must include such information relating to what is proposed as may be prescribed.

Panel to consider application

7

(1) Where the relevant trust receives an application duly made under this Schedule, it must as soon as practicable—

(a) give prescribed information to P and any prescribed person; and

(b) constitute a panel to consider the application.

(2) See also section 297 (general provision about panels).

Decision on application

8

(1) Having considered the application, the panel must either—

(a) extend the period of the authorisation in accordance with sub-paragraph (2); or

(b) refuse the application.

(2) An extension under sub-paragraph (1)(a) must be—

(a) if the period of the authorisation has not previously been extended, for the period of 6 months beginning immediately after the end of the initial period;

(b) if the period of the authorisation has previously been extended under section 37 or 38 or this Schedule, for the period of one year beginning immediately after the end of the current period.

(3) The panel may extend the period of the authorisation only if—

(a) where there is one specified measure, the panel considers that the criteria for continuation are met in respect of that measure;

(b) where there are two or more specified measures, the panel considers that the criteria for continuation are met in respect of at least one of those measures.

(4) Where the panel extends the period of the authorisation and either—

(a) there is a specified measure as respects which the panel does not consider that the criteria for continuation are met, or

(b) there is a measure authorised by the authorisation which is not specified,

the panel must cancel the provision of the authorisation which authorises that measure.

(5) A cancellation under sub-paragraph (4) takes effect from the end of the current period.

(6) If the current period ends without the period of the authorisation having been extended, the period of the authorisation may not be extended.

(7) In this paragraph references to a “specified” measure are to a measure specified under paragraph 4(1)(b).

Time limit for panel's decision, and duty to notify decision

9

(1) The panel must comply with paragraph 8(1) as soon as practicable and in any case no later than the end of the permitted period.

(2) The “permitted period” is the period of 7 working days 28 working days beginning with the day on which the application is received by the trust (or, if that day is not a working day, beginning with the first working day after that).

(3) As soon as practicable after granting or refusing an extension under paragraph 8, the panel must give to P and any prescribed person—

(a) written notice of the grant or refusal; and

(b) any prescribed information.

(4) Regulations under sub-paragraph (3) must ensure that the Attorney General is given notice in any case where—

(a) the panel extends the period of an authorisation;

(b) the authorisation authorises a measure within section 41(2)(b) or (d) (deprivation of liberty or community residence requirement), and will do so after the end of the current period; and

(c) the application under this Schedule contained the statement mentioned in paragraph 4(2) (statement that P lacks, or probably lacks, capacity in relation to making of Tribunal application).

SCHEDULE 4

Part 1 — Making instruments

General requirements as to making instruments

1

(1) An instrument is made in accordance with this Schedule only if—

(a) it is in a form specified by regulations or by the Public Guardian in accordance with regulations;

(b) it complies with paragraph 2; and

(2) Regulations may make different provision according to whether the instrument relates to—

(a) care, treatment and personal welfare (or any of those matters); or

(b) property and affairs; or

(3) Regulations may also make different provision according to whether only one or more than one attorney or replacement attorney is to be appointed (and if more than one, whether jointly or jointly and severally).

(4) In this Schedule—

(a) “intended attorney”, in relation to an instrument, means a person who if the instrument were registered and a lasting power of attorney were created would be an attorney under the lasting power;

(b) “replacement attorney” means a person appointed under section 103(1)(b) to replace a person appointed as an attorney.

(5) In paragraphs 7, 14, 15, 17 and 26, references to a person appointed as an attorney or replacement attorney do not include a person whose appointment has terminated.

Requirements as to content of instruments

2

(1) The instrument must include—

(a) the prescribed information about the purpose of the instrument and the effect of a lasting power of attorney;

(b) a statement by the donor to the effect that the donor—

(i) has read the prescribed information or a prescribed part of it (or has heard it read); and

(ii) intends the authority conferred by the instrument to include authority to make decisions on the donor's behalf in circumstances where the donor no longer has capacity;

(i) naming a person or persons whom the donor wishes to be notified of any application for the registration of the instrument; or

(ii) stating that there are no persons whom the donor wishes to be notified of any such application;

(d) a statement by each person appointed as attorney, and each person (if any) appointed as replacement attorney, to the effect that he or she—

(i) has read the prescribed information or a prescribed part of it (or has heard it read); and

(ii) understands the duties imposed by sections 1, 2, 5 and 7 (principles, best interests) on an attorney under a lasting power of attorney; and

(e) a certificate by a person of a prescribed description that, in that person's opinion, at the time when the donor executes the instrument—

(i) the donor understands the purpose of the instrument and the scope of the authority conferred by it;

(ii) no fraud or undue pressure is being used to induce the donor to create a lasting power of attorney; and

(iii) there is nothing else which would prevent a lasting power of attorney from being created by the instrument.

(2) Regulations may prescribe a maximum number of persons who may be named under sub-paragraph (1)(c).

(3) The persons who may be named under sub-paragraph (1)(c) do not include a person who is appointed as attorney or replacement attorney by the instrument.

(4) A certificate under sub-paragraph (1)(e)—

(a) must be made in a form specified by regulations or by the Public Guardian in accordance with regulations; and

(b) must include any prescribed information.

(5) The certificate may not be given by a person appointed as attorney or replacement attorney by the instrument.

Failure to comply with required form

3

(1) If an instrument differs in an immaterial respect in form or mode of expression from the form specified under paragraph 1(1)(a), it is to be treated by the Public Guardian as sufficient in point of form and expression.

(2) The court may declare that an instrument which is not in the form specified under paragraph 1(1)(a) is to be treated as if it were in that form, if the court is satisfied that the persons executing the instrument intended it to create a lasting power of attorney.

Part 2 — Registration

Applications and procedure for registration

4

(1) An application to the Public Guardian for the registration of an instrument intended to create a lasting power of attorney—

(a) must be made in a form specified by regulations or by the Public Guardian in accordance with regulations; and

(b) must include any prescribed information.

(2) The application may be made—

(a) by the donor;

(b) by the intended attorney or intended attorneys; or

(c) if there are two or more intended attorneys who are to act jointly and severally in respect of any matter, by any of them.

(3) The application must be accompanied by—

(a) the instrument; and

(b) any fee provided for under section 116 of the Judicature (Northern Ireland) Act 1978.

5

Subject to paragraphs 10 to 14, on an application under paragraph 4 the Public Guardian must register the instrument as a lasting power of attorney at the end of the prescribed period.

Notification requirements

6

A person (or persons) about to make an application under paragraph 4 must notify any persons named under paragraph 2(1)(c) that the application is about to be made.

7

(1) As soon as practicable after receiving an application under paragraph 4, the Public Guardian must notify the persons within sub-paragraph (2) that the application has been received.

(2) The persons to be notified are all of the following (except the person or persons who have made the application)—

(a) the donor;

(b) each person appointed as attorney;

8

(1) A notice under paragraph 6 must be in a form specified by regulations or by the Public Guardian in accordance with regulations.

(2) A notice under paragraph 6 or 7 must include any prescribed information.

Power to dispense with notification requirements

9

(1) A person proposing to make an application under paragraph 4 may apply to the court for an order dispensing with the requirement to notify under paragraph 6.

(2) The court may make such an order if satisfied that the notification would serve no useful purpose.

Instrument not properly made

10

If it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 is not made in accordance with this Schedule, the Public Guardian must not register the instrument unless directed to do so by the court.

Instrument containing ineffective provision

11

(1) Sub-paragraph (2) applies if it appears to the Public Guardian that an instrument accompanying an application under paragraph 4 contains a provision which—

(a) would be ineffective as part of a lasting power of attorney; or

(b) would prevent the instrument from operating as a valid lasting power of attorney.

(2) The Public Guardian—

(a) must apply to the court for it to determine the matter under section 111(1); and

(b) pending the determination by the court, must not register the instrument.

(3) Sub-paragraph (4) applies if the court determines under section 111(1) (whether or not on an application by the Public Guardian) that an instrument executed with a view to creating a lasting power of attorney contains a provision which—

(a) would be ineffective as part of a lasting power of attorney; or

(b) would prevent the instrument from operating as a valid lasting power of attorney.

(4) The court must—

(a) notify the Public Guardian that it has severed the provision; or

(b) direct the Public Guardian not to register the instrument.

(5) Where the court notifies the Public Guardian that it has severed a provision, the Public Guardian must register the instrument with a note to that effect attached to it.

Deputy already appointed

12

(1) Sub-paragraph (2) applies if it appears to the Public Guardian that—

(a) there is a deputy appointed by the court for the donor; and

(b) the powers conferred on the deputy would, if the instrument were registered, to any extent conflict with the powers conferred on the attorney.

(2) The Public Guardian must not register the instrument unless directed by the court to do so.

Objection by attorney, replacement attorney or named person

13

(1) Sub-paragraph (2) applies if a person other than the donor—

(a) is notified under paragraph 6 or 7 of an application for the registration of an instrument; and

(b) before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration on the ground that the instrument has been revoked.

(2) If the Public Guardian is satisfied that the ground for making the objection is established, the Public Guardian must not register the instrument unless the court, on the application of the person applying for the registration—

(a) is satisfied that the ground is not established; and

(b) directs the Public Guardian to register the instrument.

(3) Sub-paragraph (4) applies if a person other than the donor—

(a) is notified under paragraph 6 or 7 of an application for the registration of an instrument; and

(b) before the end of the prescribed period—

(i) makes an application to the court objecting to the registration on a prescribed ground; and

(ii) notifies the Public Guardian of the application.

(4) The Public Guardian must not register the instrument unless directed by the court to do so.

Objection by donor

14

(1) This paragraph applies if the donor—

(a) is notified under paragraph 7 of an application for the registration of an instrument; and

(b) before the end of the prescribed period, gives notice to the Public Guardian of an objection to the registration.

(2) The Public Guardian must not register the instrument unless the court, on the application of a person appointed as attorney or replacement attorney—

(a) is satisfied that the donor lacks capacity to object to the registration; and

(b) directs the Public Guardian to register the instrument.

Notification of registration

15

Where an instrument is registered under this Schedule, the Public Guardian must notify—

(a) the donor;

(b) each person appointed as attorney; and

Evidence of registration

16

(1) A document purporting to be an office copy of an instrument registered under this Schedule is evidence of—

(a) the contents of the instrument; and

(b) the fact that it has been registered.

(2) Sub-paragraph (1) is without prejudice to section 3 of the Powers of Attorney Act 1971 (proof by certified copy) and to any other method of proof authorised by law.

Part 3 — Cancellation of registration and notification of severance

Cancellation of registration by Public Guardian following revocation

17

The Public Guardian must cancel the registration of an instrument as a lasting power of attorney on being satisfied that the power has been revoked or has otherwise come to an end.

Court to require Public Guardian to cancel registration in certain cases

18

The court must direct the Public Guardian to cancel the registration of an instrument as a lasting power of attorney if it—

(a) determines under section 110(2)(a) that a requirement for creating the lasting power of attorney was not met;

(b) determines under section 110(2)(b) that the lasting power of attorney has been revoked or has otherwise come to an end; or

Notification by court of ineffective provision etc in instrument

19

(1) Sub-paragraph (2) applies if the court determines under section 111(1) that a lasting power of attorney contains a provision which—

(a) is ineffective as part of a lasting power of attorney; or

(b) prevents the instrument from operating as a valid lasting power of attorney.

(2) The court must—

(a) notify the Public Guardian that it has severed the provision; or

(b) direct the Public Guardian to cancel the registration of the instrument as a lasting power of attorney.

Notification on cancellation

20

If the Public Guardian cancels the registration of an instrument as a lasting power of attorney, the Public Guardian must notify—

(a) the donor;

(b) each person appointed as attorney; and

Delivery up of instrument on cancellation

21

On the cancellation of the registration of an instrument, the instrument and any office copies of it must be delivered up to the Public Guardian to be cancelled.

Part 4 — Records of alterations in registered powers

Partial revocation or suspension of power as a result of bankruptcy

22

If in the case of a registered instrument it appears to the Public Guardian that under section 106 or 107 a lasting power of attorney is revoked, or suspended, in relation to the donor's property and affairs (but not in relation to other matters), the Public Guardian must attach to the instrument a note to that effect.

Termination of appointment of attorney which does not revoke power

23

If in the case of a registered instrument it appears to the Public Guardian that an event has occurred which—

(a) has terminated the appointment of the attorney, but

(b) has not revoked the instrument,

the Public Guardian must attach to the instrument a note to that effect.

Replacement of attorney

24

If in the case of a registered instrument it appears to the Public Guardian that a person appointed as attorney has been replaced under the terms of the instrument, the Public Guardian must attach to the instrument a note to that effect.

Severance of ineffective provisions

25

If in the case of a registered instrument the court notifies the Public Guardian under paragraph 19(2)(a) that it has severed a provision of the instrument, the Public Guardian must attach to the instrument a note to that effect.

Notification of alterations

26

If the Public Guardian attaches a note to an instrument under any of paragraphs 22 to 25, the Public Guardian must give notice of the note to—

(a) each person appointed as attorney; and

(b) each person (if any) appointed as replacement attorney.

SCHEDULE 5

Wills: introductory

1

Paragraphs 2 to 4 apply in relation to the execution of a will on behalf of P by virtue of section 115.

Provision that may be made in will

2

The will may make any provision (whether by disposing of property or exercising a power or otherwise) which could be made by a will executed by P if P had capacity to make it.

Wills: requirements relating to execution

3

(1) Sub-paragraph (2) applies if under section 113 the court makes an order or gives directions requiring or authorising a person (“the authorised person”) to execute a will on behalf of P.

(2) Any will executed in pursuance of the order or direction—

(a) must state that it is signed by P acting by the authorised person;

(b) must be signed by the authorised person with the name of P and the authorised person's own name, in the presence of two or more witnesses present at the same time;

(d) must be sealed with the official seal of the court.

Wills: effect of execution

4

(1) This paragraph applies where a will is executed in accordance with paragraph 3.

(2) The Wills and Administration Proceedings (Northern Ireland) Order 1994 (“the 1994 Order”) has effect in relation to the will as if it were signed by P by P's own hand, except that—

(a) Article 5 of the 1994 Order (formalities for execution) does not apply; and

(b) in the subsequent provisions of the 1994 Order any reference to execution in accordance with Article 5 or execution in the manner in which a will is required to be executed is to be read as a reference to execution in the manner in which a will is required to be executed under paragraph 3(2).

(3) The will has the same effect for all purposes as if—

(a) P had had the capacity to make a valid will; and

(b) the will had been executed by P in the manner required by the 1994 Order.

(4) But sub-paragraph (3) does not have effect in relation to the will—

(a) in so far as it disposes of immovable property outside Northern Ireland; or

(b) in so far as it relates to any property or matter other than immoveable property if, when the will is executed—

(i) P is domiciled outside Northern Ireland; and

(ii) the condition in sub-paragraph (5) is met.

(5) The condition is that, under the law of P's domicile, any question of P's testamentary capacity would fall to be determined in accordance with the law of a place outside Northern Ireland.

Vesting orders ancillary to settlement etc

5

(1) If provision is made by virtue of section 115 for—

(a) the settlement of any property of P, or

(b) the exercise of a power vested in P of appointing trustees or retiring from a trust,

the court may also make as respects the property settled or the trust property such consequential vesting or other orders as the case may require.

(2) The power under sub-paragraph (1) includes, in the case of the exercise of such a power, any order which could have been made in such a case under Part 4 of the Trustee Act (Northern Ireland) 1958.

Variation of settlements

6

(1) If a settlement has been made by virtue of section 115, the court may by order vary or revoke the settlement if—

(a) the settlement makes provision for its variation or revocation;

(b) the court is satisfied that a material fact was not disclosed when the settlement was made; or

(2) Any such order may give such consequential directions as the court considers appropriate.

(3) Section 113(7) (variation and discharge of court orders) is subject to this paragraph.

Transfer of stock to appointee outside Northern Ireland

7

(1) Sub-paragraph (2) applies if the court is satisfied—

Reading this document does not replace reading the official text published on legislation.gov.uk. Contains public sector information licensed under the Open Government Licence v3.0. We assume no responsibility for any inaccuracies arising from the conversion of the original CLML XML to this format.

This text is published under legislation.gov.uk's own terms of reuse, not a Legalize or public-domain licence. legislation.gov.uk
Open Government Licence v3.0 (attribution required)
© Crown and database right. Derived from content available under the Open Government Licence v3.0 from legislation.gov.uk.