Mental Capacity Act 2005

this Part does not require the supervisory body to take any action in respect of the standard authorisation so far as the best interests requirement relates to it.

Mental health, mental capacity, eligibility or no refusals review assessment positive

116

• (1) This paragraph applies if the following conditions are met.

• (2) The first condition is that one or more of the following are carried out—

• (a) a mental health review assessment;

• (b) a mental capacity review assessment;

• (c) an eligibility review assessment;

• (d) a no refusals review assessment.

• (3) The second condition is that each assessment carried out comes to a positive conclusion.

• (4) The supervisory body must decide whether or not each of the assessed qualifying requirements is reviewable on the change of reason ground.

• (5) If the supervisory body decide that any of the assessed qualifying requirements is reviewable on the change of reason ground, they must vary the standard authorisation so that it states the reason why the relevant person now meets the requirement or requirements in question.

• (6) If the supervisory body decide that none of the assessed qualifying requirements are reviewable on the change of reason ground, this Part does not require the supervisory body to take any action in respect of the standard authorisation so far as those requirements relate to it.

• (7) An assessed qualifying requirement is a qualifying requirement in relation to which a review assessment is carried out.

One or more review assessments negative

117

• (1) This paragraph applies if one or more of the review assessments carried out comes to a negative conclusion.

• (2) The supervisory body must terminate the standard authorisation with immediate effect.

Completion of a review

118

• (1) The review of the standard authorisation is complete in any of the following cases.

• (2) The first case is where paragraph 110 applies.

• (3) The second case is where—

• (a) paragraph 111 applies, and

• (b) paragraph 117 requires the supervisory body to terminate the standard authorisation.

• (4) In such a case, the supervisory body need not comply with any of the other provisions of paragraphs 114 to 116 which would be applicable to the review (were it not for this sub-paragraph).

• (5) The third case is where—

• (a) paragraph 111 applies,

• (b) paragraph 117 does not require the supervisory body to terminate the standard authorisation, and

• (c) the supervisory body comply with all of the provisions of paragraphs 114 to 116 (so far as they are applicable to the review).

Variations under this Part

119

Any variation of the standard authorisation made under this Part must be in writing.

Notice of outcome of review

120

• (1) When the review of the standard authorisation is complete, the supervisory body must give notice to all of the following—

• (a) the managing authority of the relevant hospital or care home;

• (b) the relevant person;

• (c) the relevant person's representative;

• (d) any section 39D IMCA.

• (2) That notice must state—

• (a) the outcome of the review, and

• (b) what variation (if any) has been made to the authorisation under this Part.

Records

121

A supervisory body must keep a written record of the following information—

• (a) each request for a review that is made to them;

• (b) the outcome of each request;

• (c) each review which they carry out;

• (d) the outcome of each review which they carry out;

• (e) any variation of an authorisation made in consequence of a review.

Relationship between review and suspension under Part 6

122

• (1) This paragraph applies if a standard authorisation is suspended in accordance with Part 6.

• (2) No review may be requested under this Part whilst the standard authorisation is suspended.

• (3) If a review has already been requested, or is being carried out, when the standard authorisation is suspended, no steps are to be taken in connection with that review whilst the authorisation is suspended.

Relationship between review and request for new authorisation

123

• (1) This paragraph applies if, in accordance with paragraph 24 (as read with paragraph 29), the managing authority of the relevant hospital or care home make a request for a new standard authorisation which would be in force after the expiry of the existing authorisation.

• (2) No review may be requested under this Part until the request for the new standard authorisation has been disposed of.

• (3) If a review has already been requested, or is being carried out, when the new standard authorisation is requested, no steps are to be taken in connection with that review until the request for the new standard authorisation has been disposed of.

124

• (1) This paragraph applies if—

• (a) a review under this Part has been requested, or is being carried out, and

• (b) the managing authority of the relevant hospital or care home make a request under paragraph 30 for a new standard authorisation which would be in force on or before, and after, the expiry of the existing authorisation.

• (2) No steps are to be taken in connection with the review under this Part until the request for the new standard authorisation has been disposed of.

125

In paragraphs 123 and 124—

• (a) the existing authorisation is the authorisation referred to in paragraph 101;

• (b) the expiry of the existing authorisation is the time when it is expected to cease to be in force.

Part 9 — Assessments under this Schedule

Introduction

126

This Part contains provision about assessments under this Schedule.

127

An assessment under this Schedule is either of the following—

• (a) an assessment carried out in connection with a request for a standard authorisation under Part 4;

• (b) a review assessment carried out in connection with a review of a standard authorisation under Part 8.

128

In this Part, in relation to an assessment under this Schedule—

• “assessor” means the person carrying out the assessment;

• “relevant procedure” means—the request for the standard authorisation, orthe review of the standard authorisation;

• “supervisory body” means the supervisory body responsible for securing that the assessment is carried out.

Supervisory body to select assessor

129

• (1) It is for the supervisory body to select a person to carry out an assessment under this Schedule.

• (2) The supervisory body must not select a person to carry out an assessment unless the person—

• (a) appears to the supervisory body to be suitable to carry out the assessment (having regard, in particular, to the type of assessment and the person to be assessed), and

• (b) is eligible to carry out the assessment.

• (3) Regulations may make provision about the selection, and eligibility, of persons to carry out assessments under this Schedule.

• (4) Sub-paragraphs (5) and (6) apply if two or more assessments are to be obtained for the purposes of the relevant procedure.

• (5) In a case where the assessments to be obtained include a mental health assessment and a best interests assessment, the supervisory body must not select the same person to carry out both assessments.

• (6) Except as prohibited by sub-paragraph (5), the supervisory body may select the same person to carry out any number of the assessments which the person appears to be suitable, and is eligible, to carry out.

130

• (1) This paragraph applies to regulations under paragraph 129(3).

• (2) The regulations may make provision relating to a person's—

• (a) qualifications,

• (b) skills,

• (c) training,

• (d) experience,

• (e) relationship to, or connection with, the relevant person or any other person,

• (f) involvement in the care or treatment of the relevant person,

• (g) connection with the supervisory body, or

• (h) connection with the relevant hospital or care home, or with any other establishment or undertaking.

• (2A) In relation to England—

• (a) the provision that the regulations may make in relation to a person's training in connection with best interests assessments includes provision for particular training to be specified by Social Work England or the Secretary of State otherwise than in the regulations;

• (b) the provision that the regulations may make in relation to a person's training in connection with other assessments includes provision for particular training to be specified by the Secretary of State otherwise than in the regulations.

• (2B) The regulations may give Social Work England power to charge fees for specifying any training as mentioned in sub-paragraph (2A)(a).

• (2C) If the regulations give Social Work England power to charge fees, section 50(2) to (7) of the Children and Social Work Act 2017 apply for the purposes of sub-paragraph (2B) as they apply for the purposes of that section.

• (3) In relation to Wales the provision that the regulations may make in relation to a person's training may provide for particular training to be specified by the Welsh Ministers otherwise than in the regulations.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) The regulations may make provision requiring a person to be insured in respect of liabilities that may arise in connection with the carrying out of an assessment.

• (6) In relation to cases where two or more assessments are to be obtained for the purposes of the relevant procedure, the regulations may limit the number, kind or combination of assessments which a particular person is eligible to carry out.

• (7) Sub-paragraphs (2) to (6) do not limit the generality of the provision that may be made in the regulations.

Examination and copying of records

131

An assessor may, at all reasonable times, examine and take copies of—

• (a) any health record,

• (b) any record of, or held by, a local authority and compiled in accordance with a social services function, and

• (c) any record held by a person registered under Part 2 of the Care Standards Act 2000 , Chapter 2 of Part 1 of the Health and Social Care Act 2008 or Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016,

which the assessor considers may be relevant to the assessment which is being carried out.

Representations

132

In carrying out an assessment under this Schedule, the assessor must take into account any information given, or submissions made, by any of the following—

• (a) the relevant person's representative;

• (b) any section 39A IMCA;

• (c) any section 39C IMCA;

• (d) any section 39D IMCA.

Assessments to stop if any comes to negative conclusion

133

• (1) This paragraph applies if an assessment under this Schedule comes to the conclusion that the relevant person does not meet one of the qualifying requirements.

• (2) This Schedule does not require the supervisory body to secure that any other assessments under this Schedule are carried out in relation to the relevant procedure.

• (3) The supervisory body must give notice to any assessor who is carrying out another assessment in connection with the relevant procedure that they are to cease carrying out that assessment.

• (4) If an assessor receives such notice, this Schedule does not require the assessor to continue carrying out that assessment.

Duty to keep records and give copies

134

• (1) This paragraph applies if an assessor has carried out an assessment under this Schedule (whatever conclusions the assessment has come to).

• (2) The assessor must keep a written record of the assessment.

• (3) As soon as practicable after carrying out the assessment, the assessor must give copies of the assessment to the supervisory body.

135

• (1) This paragraph applies to the supervisory body if they are given a copy of an assessment under this Schedule.

• (2) The supervisory body must give copies of the assessment to all of the following—

• (a) the managing authority of the relevant hospital or care home;

• (b) the relevant person;

• (c) any section 39A IMCA;

• (d) the relevant person's representative.

• (3) If—

• (a) the assessment is obtained in relation to a request for a standard authorisation, and

• (b) the supervisory body are required by paragraph 50(1) to give the standard authorisation,

the supervisory body must give the copies of the assessment when they give copies of the authorisation in accordance with paragraph 57.

• (4) If—

• (a) the assessment is obtained in relation to a request for a standard authorisation, and

• (b) the supervisory body are prohibited by paragraph 50(2) from giving the standard authorisation,

the supervisory body must give the copies of the assessment when they give notice in accordance with paragraph 58.

• (5) If the assessment is obtained in connection with the review of a standard authorisation, the supervisory body must give the copies of the assessment when they give notice in accordance with paragraph 120.

136

• (1) This paragraph applies to the supervisory body if—

• (a) they are given a copy of a best interests assessment, and

• (b) the assessment includes, in accordance with paragraph 44(2), a statement that it appears to the assessor that there is an unauthorised deprivation of liberty.

• (2) The supervisory body must notify all of the persons listed in sub-paragraph (3) that the assessment includes such a statement.

• (3) Those persons are—

• (a) the managing authority of the relevant hospital or care home;

• (b) the relevant person;

• (c) any section 39A IMCA;

• (d) any interested person consulted by the best interests assessor.

• (4) The supervisory body must comply with this paragraph when (or at some time before) they comply with paragraph 135.

Part 10 — Relevant person's representative

The representative

137

In this Schedule the relevant person's representative is the person appointed as such in accordance with this Part.

138

• (1) Regulations may make provision about the selection and appointment of representatives.

• (2) In this Part such regulations are referred to as “appointment regulations”.

Supervisory body to appoint representative

139

• (1) The supervisory body must appoint a person to be the relevant person's representative as soon as practicable after a standard authorisation is given.

• (2) The supervisory body must appoint a person to be the relevant person's representative if a vacancy arises whilst a standard authorisation is in force.

• (3) Where a vacancy arises, the appointment under sub-paragraph (2) is to be made as soon as practicable after the supervisory body becomes aware of the vacancy.

140

• (1) The selection of a person for appointment under paragraph 139 must not be made unless it appears to the person making the selection that the prospective representative would, if appointed—

• (a) maintain contact with the relevant person,

• (b) represent the relevant person in matters relating to or connected with this Schedule, and

• (c) support the relevant person in matters relating to or connected with this Schedule.

141

• (1) Any appointment of a representative for a relevant person is in addition to, and does not affect, any appointment of a donee or deputy.

• (2) The functions of any representative are in addition to, and do not affect—

• (a) the authority of any donee,

• (b) the powers of any deputy, or

• (c) any powers of the court.

Appointment regulations

142

Appointment regulations may provide that the procedure for appointing a representative may begin at any time after a request for a standard authorisation is made (including a time before the request has been disposed of).

143

• (1) Appointment regulations may make provision about who is to select a person for appointment as a representative.

• (2) But regulations under this paragraph may only provide for the following to make a selection—

• (a) the relevant person, if he has capacity in relation to the question of which person should be his representative;

• (b) a donee of a lasting power of attorney granted by the relevant person, if it is within the scope of his authority to select a person;

• (c) a deputy, if it is within the scope of his authority to select a person;

• (d) a best interests assessor;

• (e) the supervisory body.

• (3) Regulations under this paragraph may provide that a selection by the relevant person, a donee or a deputy is subject to approval by a best interests assessor or the supervisory body.

• (4) Regulations under this paragraph may provide that, if more than one selection is necessary in connection with the appointment of a particular representative—

• (a) the same person may make more than one selection;

• (b) different persons may make different selections.

• (5) For the purposes of this paragraph a best interests assessor is a person carrying out a best interests assessment in connection with the standard authorisation in question (including the giving of that authorisation).

144

• (1) Appointment regulations may make provision about who may, or may not, be—

• (a) selected for appointment as a representative, or

• (b) appointed as a representative.

• (2) Regulations under this paragraph may relate to any of the following matters—

• (a) a person's age;

• (b) a person's suitability;

• (c) a person's independence;

• (d) a person's willingness;

• (e) a person's qualifications.

145

Appointment regulations may make provision about the formalities of appointing a person as a representative.

146

In a case where a best interests assessor is to select a person to be appointed as a representative, appointment regulations may provide for the variation of the assessor's duties in relation to the assessment which he is carrying out.

Monitoring of representatives

147

Regulations may make provision requiring the managing authority of the relevant hospital or care home to—

• (a) monitor, and

• (b) report to the supervisory body on,

the extent to which a representative is maintaining contact with the relevant person.

Termination

148

Regulations may make provision about the circumstances in which the appointment of a person as the relevant person's representative ends or may be ended.

149

Regulations may make provision about the formalities of ending the appointment of a person as a representative.

Suspension of representative's functions

150

• (1) Regulations may make provision about the circumstances in which functions exercisable by, or in relation to, the relevant person's representative (whether under this Schedule or not) may be—

• (a) suspended, and

• (b) if suspended, revived.

• (2) The regulations may make provision about the formalities for giving effect to the suspension or revival of a function.

• (3) The regulations may make provision about the effect of the suspension or revival of a function.

Payment of representative

151

Regulations may make provision for payments to be made to, or in relation to, persons exercising functions as the relevant person's representative.

Regulations under this Part

152

The provisions of this Part which specify provision that may be made in regulations under this Part do not affect the generality of the power to make such regulations.

Effect of appointment of section 39C IMCA

153

Paragraphs 159 and 160 make provision about the exercise of functions by, or towards, the relevant person's representative during periods when—

• (a) no person is appointed as the relevant person's representative, but

• (b) a person is appointed as a section 39C IMCA.

Part 11 — IMCAs

Application of Part

154

This Part applies for the purposes of this Schedule.

The IMCAs

155

A section 39A IMCA is an independent mental capacity advocate appointed under section 39A.

156

A section 39C IMCA is an independent mental capacity advocate appointed under section 39C.

157

A section 39D IMCA is an independent mental capacity advocate appointed under section 39D.

158

An IMCA is a section 39A IMCA or a section 39C IMCA or a section 39D IMCA.

Section 39C IMCA: functions

159

• (1) This paragraph applies if, and for as long as, there is a section 39C IMCA.

• (2) In the application of the relevant provisions, references to the relevant person's representative are to be read as references to the section 39C IMCA.

• (3) But sub-paragraph (2) does not apply to any function under the relevant provisions for as long as the function is suspended in accordance with provision made under Part 10.

• (4) In this paragraph and paragraph 160 the relevant provisions are—

• (a) paragraph 102(3)(b) (request for review under Part 8);

• (b) paragraph 108(1)(b) (notice of review under Part 8);

• (c) paragraph 120(1)(c) (notice of outcome of review under Part 8).

160

• (1) This paragraph applies if—

• (a) a person is appointed as the relevant person's representative, and

• (b) a person accordingly ceases to hold an appointment as a section 39C IMCA.

• (2) Where a function under a relevant provision has been exercised by, or towards, the section 39C IMCA, there is no requirement for that function to be exercised again by, or towards, the relevant person's representative.

Section 39A IMCA: restriction of functions

161

• (1) This paragraph applies if—

• (a) there is a section 39A IMCA, and

• (b) a person is appointed under Part 10 to be the relevant person's representative (whether or not that person, or any person subsequently appointed, is currently the relevant person's representative).

• (2) The duties imposed on, and the powers exercisable by, the section 39A IMCA do not apply.

• (3) The duties imposed on, and the powers exercisable by, any other person do not apply, so far as they fall to be performed or exercised towards the section 39A IMCA.

• (4) But sub-paragraph (2) does not apply to any power of challenge exercisable by the section 39A IMCA.

• (5) And sub-paragraph (3) does not apply to any duty or power of any other person so far as it relates to any power of challenge exercisable by the section 39A IMCA.

• (6) Before exercising any power of challenge, the section 39A IMCA must take the views of the relevant person's representative into account.

• (7) A power of challenge is a power to make an application to the court to exercise its jurisdiction under section 21A in connection with the giving of the standard authorisation.

Part 12 — Miscellaneous

Monitoring of operation of Schedule

162

• (1) Regulations may make provision for, and in connection with, requiring one or more prescribed bodies to monitor, and report on, the operation of this Schedule in relation to England.

• (2) The regulations may, in particular, give a prescribed body authority to do one or more of the following things—

• (a) to visit hospitals and care homes;

• (b) to visit and interview persons accommodated in hospitals and care homes;

• (c) to require the production of, and to inspect, records relating to the care or treatment of persons.

• (3) “Prescribed” means prescribed in regulations under this paragraph.

163

• (1) Regulations may make provision for, and in connection with, enabling the National Assembly for Wales to monitor, and report on, the operation of this Schedule in relation to Wales.

• (2) The National Assembly may direct one or more persons or bodies to carry out the Assembly's functions under regulations under this paragraph.

Disclosure of information

164

• (1) Regulations may require either or both of the following to disclose prescribed information to prescribed bodies—

• (a) supervisory bodies;

• (b) managing authorities of hospitals or care homes.

• (2) “Prescribed” means prescribed in regulations under this paragraph.

• (3) Regulations under this paragraph may only prescribe information relating to matters with which this Schedule is concerned.

Directions by National Assembly in relation to supervisory functions

165

• (1) The National Assembly for Wales may direct a Local Health Board to exercise in relation to its area any supervisory functions which are specified in the direction.

• (2) Directions under this paragraph must not preclude the National Assembly from exercising the functions specified in the directions.

• (3) In this paragraph “supervisory functions” means functions which the National Assembly have as supervisory body, so far as they are exercisable in relation to hospitals (whether NHS or independent hospitals, and whether in Wales or England).

166

• (1) This paragraph applies where, under paragraph 165, a Local Health Board (“the specified LHB”) is directed to exercise supervisory functions (“delegated functions”).

• (2) The National Assembly for Wales may give directions to the specified LHB about the Board's exercise of delegated functions.

• (3) The National Assembly may give directions for any delegated functions to be exercised, on behalf of the specified LHB, by a committee, sub-committee or officer of that Board.

• (4) The National Assembly may give directions providing for any delegated functions to be exercised by the specified LHB jointly with one or more other Local Health Boards.

• (5) Where, under sub-paragraph (4), delegated functions are exercisable jointly, the National Assembly may give directions providing for the functions to be exercised, on behalf of the Local Health Boards in question, by a joint committee or joint sub-committee.

167

• (1) Directions under paragraph 165 must be given in regulations.

• (2) Directions under paragraph 166 may be given—

• (a) in regulations, or

• (b) by instrument in writing.

168

The power under paragraph 165 or paragraph 166 to give directions includes power to vary or revoke directions given under that paragraph.

Notices

169

Any notice under this Schedule must be in writing.

Regulations

170

• (1) This paragraph applies to all regulations under this Schedule, except regulations under paragraph 162, 163, 167 or 183.

• (2) It is for the Secretary of State to make such regulations in relation to authorisations under this Schedule which relate to hospitals and care homes situated in England.

• (3) It is for the National Assembly for Wales to make such regulations in relation to authorisations under this Schedule which relate to hospitals and care homes situated in Wales.

171

It is for the Secretary of State to make regulations under paragraph 162.

172

It is for the National Assembly for Wales to make regulations under paragraph 163 or 167.

173

• (1) This paragraph applies to regulations under paragraph 183.

• (2) It is for the Secretary of State to make such regulations in relation to cases where a question as to the ordinary residence of a person is to be determined by the Secretary of State.

• (3) It is for the National Assembly for Wales to make such regulations in relation to cases where a question as to the ordinary residence of a person is to be determined by the National Assembly.

Part 13 — Interpretation

Introduction

174

This Part applies for the purposes of this Schedule.

Hospitals and their managing authorities

175

• (1) “ Hospital ” means—

• (a) an NHS hospital, or

• (b) an independent hospital.

• (2) “ NHS hospital ” means—

• (a) a health service hospital as defined by section 275 of the National Health Service Act 2006 or section 206 of the National Health Service (Wales) Act 2006, or

• (b) a hospital as defined by section 206 of the National Health Service (Wales) Act 2006 vested in a Local Health Board.

• (3) Independent hospital”—

• (a) in relation to England, means a hospital as defined by section 275 of the National Health Service Act 2006 that is not an NHS hospital; and

• (b) in relation to Wales, means a hospital as defined by section 2 of the Care Standards Act 2000 that is not an NHS hospital.

176

• (1) “ Managing authority ”, in relation to an NHS hospital, means—

• (a) if the hospital—

• (i) is vested in the appropriate national authority for the purposes of its functions under the National Health Service Act 2006 or of the National Health Service (Wales) Act 2006, or

• (ii) consists of any accommodation provided by a local authority and used as a hospital by or on behalf of the appropriate national authority under either of those Acts,

the... ... Local Health Board or Special Health Authority responsible for the administration of the hospital;

• (aa) in relation to England, if the hospital falls within paragraph (a)(i) or (ii) and no Special Health Authority has responsibility for its administration, the Secretary of State;

• (b) if the hospital is vested in a ... National Health Service trust or NHS foundation trust, that trust;

• (c) if the hospital is vested in a Local Health Board, that Board.

• (2) For this purpose the appropriate national authority is—

• (a) in relation to England: the Secretary of State;

• (b) in relation to Wales: the National Assembly for Wales;

• (c) in relation to England and Wales: the Secretary of State and the National Assembly acting jointly.

177

“ Managing authority ”, in relation to an independent hospital, means—

• (a) in relation to England, the person registered, or required to be registered, under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of regulated activities (within the meaning of that Part) carried on in the hospital, and

• (b) in relation to Wales, the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the hospital.

Care homes and their managing authorities

178

“Care home” means—

• (a) a care home in England within the meaning given by section 3 of the Care Standards Act 2000, and

• (b) a place in Wales at which a care home service within the meaning of Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 is provided wholly or mainly to persons aged 18 or over.

179

“ Managing authority ”, in relation to a care home, means—

• (a) in relation to England, the person registered, or required to be registered, under Chapter 2 of Part 1 of the Health and Social Care Act 2008 in respect of the provision of residential accommodation, together with nursing or personal care, in the care home, and

• (b) in relation to Wales, the person registered, or required to be registered, under Part 1 of the Regulation and Inspection of Social Care (Wales) Act 2016 in respect of the care home.

Supervisory bodies: hospitals

180

• (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant hospital is situated in England.

• (2) If the relevant person is ordinarily resident in the area of a local authority in England, the supervisory body are that local authority.

• (3) Ifthe relevant person is not ordinarily resident in England and the National Assembly for Wales or a Local Health Board commission the relevant care or treatment, the National Assembly are the supervisory body.

• (4) In any other case, the supervisory body are the local authority for the area in which the relevant hospital is situated.

• (4A) Local authority” means—

• (a) the council of a county;

• (b) the council of a district for which there is no county council;

• (c) the council of a London borough;

• (d) the Common Council of the City of London;

• (e) the Council of the Isles of Scilly.

• (5) If a hospital is situated in the areas of two (or more) local authorities, it is to be regarded for the purposes of sub-paragraph (4) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.

181

• (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant hospital is situated in Wales.

• (2) The National Assembly for Wales are the supervisory body.

• (3) But if the relevant person is ordinarily resident in the area of a local authority in England, the supervisory body are that local authority.

• (4) “ Local authority ” means—

• (a) the council of a county;

• (b) the council of a district for which there is no county council;

• (c) the council of a London borough;

• (d) the Common Council of the City of London;

• (e) the Council of the Isles of Scilly.

Supervisory bodies: care homes

182

• (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant care home is situated in England or in Wales.

• (2) The supervisory body are the local authority for the area in which the relevant person is ordinarily resident.

• (3) But if the relevant person is not ordinarily resident in the area of a local authority, the supervisory body are the local authority for the area in which the care home is situated.

• (4) In relation to England “ local authority ” means—

• (a) the council of a county;

• (b) the council of a district for which there is no county council;

• (c) the council of a London borough;

• (d) the Common Council of the City of London;

• (e) the Council of the Isles of Scilly.

• (5) In relation to Wales “ local authority ” means the council of a county or county borough.

• (6) If a care home is situated in the areas of two (or more) local authorities, it is to be regarded for the purposes of sub-paragraph (3) as situated in whichever of the areas the greater (or greatest) part of the care home is situated.

183

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2A) Section 39(1), (2) and (4) to (6) of the Care Act 2014 and paragraphs 1(1), 2(1) and 8 of Schedule 1 to that Act apply to any determination of where a person is ordinarily resident for the purposes of paragraphs 180, 181 and 182 as they apply for the purposes of Part 1 of that Act.

• (2B) Section 194(1), (2), (4) and (5) of the Social Services and Well-being (Wales) Act 2014 apply to a determination of where a person is ordinarily resident for the purposes of paragraphs 180, 181 and 182 as it applies for the purposes of that Act.

• (3) Any question arising as to the ordinary residence of a person is to be determined by the Secretary of State or by the National Assembly for Wales.

• (4) The Secretary of State and the National Assembly must make and publish arrangements for determining which cases are to be dealt with by the Secretary of State and which are to be dealt with by the National Assembly.

• (5) Those arrangements may include provision for the Secretary of State and the National Assembly to agree, in relation to any question that has arisen, which of them is to deal with the case.

• (6) Regulations may make provision about arrangements that are to have effect before, upon, or after the determination of any question as to the ordinary residence of a person.

• (7) The regulations may, in particular, authorise or require a local authority to do any or all of the following things—

• (a) to act as supervisory body even though it may wish to dispute that it is the supervisory body;

• (b) to become the supervisory body in place of another local authority;

• (c) to recover from another local authority expenditure incurred in exercising functions as the supervisory body.

Same body managing authority and supervisory body

184

• (1) This paragraph applies if, in connection with a particular person's detention as a resident in a hospital or care home, the same body are both—

• (a) the managing authority of the relevant hospital or care home, and

• (b) the supervisory body.

• (2) The fact that a single body are acting in both capacities does not prevent the body from carrying out functions under this Schedule in each capacity.

• (3) But, in such a case, this Schedule has effect subject to any modifications contained in regulations that may be made for this purpose.

Interested persons

185

Each of the following is an interested person—

• (a) the relevant person's spouse or civil partner;

• (b) where the relevant person and another person are not married to each other, nor in a civil partnership with each other, but are living together as if they were a married couple or civil partners: that other person;

• (d) the relevant person's children and step-children;

• (e) the relevant person's parents and step-parents;

• (f) the relevant person's brothers and sisters, half-brothers and half-sisters, and stepbrothers and stepsisters;

• (g) the relevant person's grandparents;

• (h) a deputy appointed for the relevant person by the court;

• (i) a donee of a lasting power of attorney granted by the relevant person.

186

• (1) An interested person consulted by the best interests assessor is any person whose name is stated in the relevant best interests assessment in accordance with paragraph 40 (interested persons whom the assessor consulted in carrying out the assessment).

• (2) The relevant best interests assessment is the most recent best interests assessment carried out in connection with the standard authorisation in question (whether the assessment was carried out under Part 4 or Part 8).

187

Where this Schedule imposes on a person a duty towards an interested person, the duty does not apply if the person on whom the duty is imposed—

• (a) is not aware of the interested person's identity or of a way of contacting him, and

• (b) cannot reasonably ascertain it.

188

The following table contains an index of provisions defining or otherwise explaining expressions used in this Schedule—

General requirements as to making instruments

Requirements as to content of instruments

Failure to comply with prescribed form

Applications and procedure for registration

Notification requirements

Power to dispense with notification requirements

Instrument not made properly or containing ineffective provision

Deputy already appointed

Objection by donee or named person

Objection by donor

Notification of registration

Evidence of registration

Partial revocation or suspension of power as a result of bankruptcy

Termination of appointment of donee which does not revoke power

Replacement of donee

Severance of ineffective provisions

Notification of alterations

SCHEDULE 1A

Part 1 — Ineligible persons

Application

1

This Schedule applies for the purposes of—

• (a) section 16A, and

• (b) paragraph 17 of Schedule A1.

Determining ineligibility

2

A person (“P”) is ineligible to be deprived of liberty by this Act (“ineligible”) if—

• (a) P falls within one of the cases set out in the second column of the following table, and

• (b) the corresponding entry in the third column of the table —or the provision, or one of the provisions, referred to in that entry — provides that he is ineligible.

	Status of P	Determination of ineligibility
Case A	P is—subject to the hospital treatment regime, anddetained in a hospital under that regime.	P is ineligible.
Case B	P is—subject to the hospital treatment regime, butnot detained in a hospital under that regime.	See paragraphs 3 and 4.
Case C	P is subject to the community treatment regime.	See paragraphs 3 and 4.
Case D	P is subject to the guardianship regime.	See paragraphs 3 and 5.
Case E	P is—within the scope of the Mental Health Act, butnot subject to any of the mental health regimes.	See paragraph 5.

Authorised course of action not in accordance with regime

3

• (1) This paragraph applies in cases B, C and D in the table in paragraph 2.

• (2) P is ineligible if the authorised course of action is not in accordance with a requirement which the relevant regime imposes.

• (3) That includes any requirement as to where P is, or is not, to reside.

• (4) The relevant regime is the mental health regime to which P is subject.

Treatment for mental disorder in a hospital

4

• (1) This paragraph applies in cases B and C in the table in paragraph 2.

• (2) P is ineligible if the relevant care or treatment consists in whole or in part of medical treatment for mental disorder in a hospital.

P objects to being a mental health patient etc

5

• (1) This paragraph applies in cases D and E in the table in paragraph 2.

• (2) P is ineligible if the following conditions are met.

• (3) The first condition is that the relevant instrument authorises P to be a mental health patient.

• (4) The second condition is that P objects—

• (a) to being a mental health patient, or

• (b) to being given some or all of the mental health treatment.

• (5) The third condition is that a donee or deputy has not made a valid decision to consent to each matter to which P objects.

• (6) In determining whether or not P objects to something, regard must be had to all the circumstances (so far as they are reasonably ascertainable), including the following—

• (a) P's behaviour;

• (b) P's wishes and feelings;

• (c) P's views, beliefs and values.

• (7) But regard is to be had to circumstances from the past only so far as it is still appropriate to have regard to them.

Part 2 — Interpretation

Application

6

This Part applies for the purposes of this Schedule.

Mental health regimes

7

The mental health regimes are—

• (a) the hospital treatment regime,

• (b) the community treatment regime, and

• (c) the guardianship regime.

Hospital treatment regime

8

• (1) P is subject to the hospital treatment regime if he is subject to—

• (a) a hospital treatment obligation under the relevant enactment, or

• (b) an obligation under another England and Wales enactment which has the same effect as a hospital treatment obligation.

• (2) But where P is subject to any such obligation, he is to be regarded as not subject to the hospital treatment regime during any period when he is subject to the community treatment regime.

• (3) A hospital treatment obligation is an application, order or direction of a kind listed in the first column of the following table.

• (4) In relation to a hospital treatment obligation, the relevant enactment is the enactment in the Mental Health Act which is referred to in the corresponding entry in the second column of the following table.

Hospital treatment obligation	Relevant enactment
Application for admission for assessment	Section 2
Application for admission for assessment	Section 4
Application for admission for treatment	Section 3
Order for remand to hospital	Section 35
Order for remand to hospital	Section 36
Hospital order	Section 37
Interim hospital order	Section 38
Order for detention in hospital	Section 44
Hospital direction	Section 45A
Transfer direction	Section 47
Transfer direction	Section 48
Hospital order	Section 51

Community treatment regime

9

P is subject to the community treatment regime if he is subject to—

• (a) a community treatment order under section 17A of the Mental Health Act, or

• (b) an obligation under another England and Wales enactment which has the same effect as a community treatment order.

Guardianship regime

10

P is subject to the guardianship regime if he is subject to—

• (a) a guardianship application under section 7 of the Mental Health Act,

• (b) a guardianship order under section 37 of the Mental Health Act, or

• (c) an obligation under another England and Wales enactment which has the same effect as a guardianship application or guardianship order.

England and Wales enactments

11

• (1) An England and Wales enactment is an enactment which extends to England and Wales (whether or not it also extends elsewhere).

• (2) It does not matter if the enactment is in the Mental Health Act or not.

P within scope of Mental Health Act

12

• (1) P is within the scope of the Mental Health Act if—

• (a) an application in respect of P could be made under section 2 or 3 of the Mental Health Act, and

• (b) P could be detained in a hospital in pursuance of such an application, were one made.

• (2) The following provisions of this paragraph apply when determining whether an application in respect of P could be made under section 2 or 3 of the Mental Health Act.

• (3) If the grounds in section 2(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 2(3) of that Act have been given.

• (4) If the grounds in section 3(2) of the Mental Health Act are met in P's case, it is to be assumed that the recommendations referred to in section 3(3) of that Act have been given.

• (5) In determining whether the ground in section 3(2)(c) of the Mental Health Act is met in P's case, it is to be assumed that the treatment referred to in section 3(2)(c) cannot be provided under this Act.

Authorised course of action, relevant care or treatment & relevant instrument

13

In a case where this Schedule applies for the purposes of section 16A—

• “authorised course of action” means any course of action amounting to deprivation of liberty which the order under section 16(2)(a) authorises;

• “relevant care or treatment” means any care or treatment which—comprises, or forms part of, the authorised course of action, oris to be given in connection with the authorised course of action;

• “relevant instrument” means the order under section 16(2)(a).

14

In a case where this Schedule applies for the purposes of paragraph 17 of Schedule A1—

• “authorised course of action” means the accommodation of the relevant person in the relevant hospital or care home for the purpose of being given the relevant care or treatment;

• “relevant care or treatment” has the same meaning as in Schedule A1;

• “relevant instrument” means the standard authorisation under Schedule A1.

15

• (1) This paragraph applies where the question whether a person is ineligible to be deprived of liberty by this Act is relevant to either of these decisions—

• (a) whether or not to include particular provision (“the proposed provision”) in an order under section 16(2)(a);

• (b) whether or not to give a standard authorisation under Schedule A1.

• (2) A reference in this Schedule to the authorised course of action or the relevant care or treatment is to be read as a reference to that thing as it would be if—

• (a) the proposed provision were included in the order, or

• (b) the standard authorisation were given.

• (3) A reference in this Schedule to the relevant instrument is to be read as follows—

• (a) where the relevant instrument is an order under section 16(2)(a): as a reference to the order as it would be if the proposed provision were included in it;

• (b) where the relevant instrument is a standard authorisation: as a reference to the standard authorisation as it would be if it were given.

Expressions used in paragraph 5

16

• (1) These expressions have the meanings given—

• “donee” means a donee of a lasting power of attorney granted by P;

• “mental health patient” means a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder;

• “mental health treatment” means the medical treatment for mental disorder referred to in the definition of “mental health patient”.

• (2) A decision of a donee or deputy is valid if it is made—

• (a) within the scope of his authority as donee or deputy, and

• (b) in accordance with Part 1 of this Act.

Expressions with same meaning as in Mental Health Act

17

• (1) “Hospital” has the same meaning as in Part 2 of the Mental Health Act.

• (2) “Medical treatment” has the same meaning as in the Mental Health Act.

• (3) “Mental disorder” has the same meaning as in Schedule A1 (see paragraph 14).

Wills: general

Provision that may be made in will

Wills: requirements relating to execution

Wills: effect of execution

Vesting orders ancillary to settlement etc.

Variation of settlements

Vesting of stock in curator appointed outside England and Wales

Preservation of interests in property disposed of on behalf of person lacking capacity

Powers as patron of benefice

Introduction

The Convention

Countries, territories and nationals

Adults with incapacity

Protective measures

Central Authority

Scope of jurisdiction

Exercise of jurisdiction

Applicable law

Lasting powers of attorney, etc.

Protection of third parties

Mandatory rules

Public policy

Recognition

Enforcement

Measures taken in relation to those aged under 16

Supplementary

Proposal for cross-border placement

Adult in danger etc.

Certificates

Powers to make further provision as to private international law

Exceptions

Regulations and orders

Commencement

Enduring power of attorney to survive mental incapacity of donor

Characteristics of an enduring power of attorney

Scope of authority etc. of attorney under enduring power

Duties of attorney in event of actual or impending incapacity of donor

Duty to give notice to relatives

Duty to give notice to donor

Contents of notices

Duty to give notice to other attorneys

Supplementary

Registration of instrument creating power

Register of enduring powers

Effect and proof of registration

Functions of court with regard to registered power

Cancellation of registration by Public Guardian

Protection of attorney and third persons where power is invalid or revoked

Further protection of attorney and third persons

Application to joint and joint and several attorneys

Joint attorneys

Joint and several attorneys

Existing receivers

Orders, appointments etc.

Pending proceedings

Appeals

Fees

Court records

Existing charges

Preservation of interests on disposal of property

Accounts

Interpretation

Orders, determinations, etc.

Pending proceedings

Appeals

Exercise of powers of donor as trustee

Interpretation

Fines and Recoveries Act 1833 (c. 74)

Improvement of Land Act 1864 (c. 114)

Trustee Act 1925 (c. 19)

Law of Property Act 1925 (c. 20)

Administration of Estates Act 1925 (c. 23)

National Assistance Act 1948 (c. 29)

U.S.A. Veterans' Pensions (Administration) Act 1949 (c. 45)

Intestates' Estates Act 1952 (c. 64)

Variation of Trusts Act 1958 (c. 53)

Administration of Justice Act 1960 (c. 65)

Industrial and Provident Societies Act 1965 (c. 12)

Compulsory Purchase Act 1965 (c. 56)

Leasehold Reform Act 1967 (c. 88)

Medicines Act 1968 (c. 67)

Family Law Reform Act 1969 (c. 46)

Local Authority Social Services Act 1970 (c. 42)

Courts Act 1971 (c. 23)

Local Government Act 1972 (c. 70)

Matrimonial Causes Act 1973 (c. 18)

Juries Act 1974 (c. 23)

Consumer Credit Act 1974 (c. 39)

Solicitors Act 1974 (c. 47)

Local Government (Miscellaneous Provisions) Act 1976 (c. 57)

Sale of Goods Act 1979 (c. 54)

Limitation Act 1980 (c. 58)

Public Passenger Vehicles Act 1981 (c. 14)

Judicial Pensions Act 1981 (c. 20)

Supreme Court Act 1981 (c. 54)

Mental Health Act 1983 (c. 20)

Administration of Justice Act 1985 (c. 61)

Insolvency Act 1986 (c. 45)

Building Societies Act 1986 (c. 53)

Public Trustee and Administration of Funds Act 1986 (c. 57)

Patronage (Benefices) Measure 1986 (No.3)

Courts and Legal Services Act 1990 (c. 41)

Child Support Act 1991 (c. 48)

Social Security Administration Act 1992 (c. 5)

Judicial Pensions and Retirement Act 1993 (c. 8)

Leasehold Reform, Housing and Urban Development Act 1993 (c. 28)

Goods Vehicles (Licensing of Operators) Act 1995 (c. 23)

Disability Discrimination Act 1995 (c. 50)

Trusts of Land and Appointment of Trustees Act 1996 (c. 47)

Human Rights Act 1998 (c. 42)

Access to Justice Act 1999 (c. 22)

Adoption and Children Act 2002 (c. 38)

Licensing Act 2003 (c. 17)

Courts Act 2003 (c. 39)

Editorial notes