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Mental Capacity Act 2005

Type Public General Act

Publication 2005-04-07

Last updated 2023-02-07

State In force

Department Statute Law Database

Source legislation.gov.uk

articles Not indexed

Reform history JSON API

(a) for persons to be approved as Approved Mental Capacity Professionals, and

(b) to ensure that enough Approved Mental Capacity Professionals are available for its area.

40

(1) The appropriate authority may by regulations—

(a) prescribe the criteria which must be met for a person to be eligible for approval as an Approved Mental Capacity Professional;

(b) prescribe matters which a local authority must or may take into account when deciding whether to approve a person as an Approved Mental Capacity Professional;

(c) provide for a prescribed body to approve training for persons who are, or who wish to become, Approved Mental Capacity Professionals.

(2) Regulations under sub-paragraph (1)(a) may include criteria relating to qualifications, training or experience.

(3) If regulations made by the Secretary of State under sub-paragraph (1)(c) provide for Social Work England to approve training, the regulations may—

(a) give Social Work England power to charge fees for approval;

(b) give Social Work England power to make rules in relation to the charging of fees;

(c) make provision in connection with the procedure for making those rules (including provision requiring Social Work England to obtain the Secretary of State's approval before making rules).

(4) Section 50(2) to (7) of the Children and Social Work Act 2017 apply for the purposes of sub-paragraph (3) as they apply for the purposes of that section.

(5) “Prescribed” means prescribed by the regulations.

(6) The “appropriate authority” means—

(a) the Secretary of State, in relation to the approval of a person by, or a person approved by, a local authority whose area is in England, and

(b) the Welsh Ministers, in relation to the approval of a person by, or a person approved by, a local authority whose area is in Wales.

Part 5 — Appointment of IMCA

Appointment of Independent Mental Capacity Advocate

41

(1) Paragraphs 42 and 43 apply to the responsible body at all times while arrangements are authorised or are being proposed.

(2) In those paragraphs “IMCA” means an independent mental capacity advocate.

42

(1) The responsible body must take all reasonable steps to appoint an IMCA to represent and support the cared-for person if—

(a) sub-paragraph (2) or (3) provides that an IMCA should be appointed, and

(b) sub-paragraphs (4) and (5) do not apply.

(2) An IMCA should be appointed if the cared-for person—

(a) has capacity to consent to being represented and supported by an IMCA, and

(b) makes a request to the responsible body for an IMCA to be appointed.

(3) An IMCA should be appointed if—

(a) the cared-for person lacks capacity to consent to being represented and supported by an IMCA, unless

(b) the responsible body is satisfied that being represented and supported by an IMCA would not be in the cared-for person's best interests.

(4) This paragraph does not apply if an IMCA has been appointed under this paragraph and the appointment has not ceased to have effect.

(5) This paragraph does not apply if the responsible body is satisfied that there is a person (an “appropriate person”) who—

(a) would be a suitable person to represent and support the cared-for person,

(b) consents to representing and supporting the cared-for person, and

(6) A person is not to be regarded as a suitable person unless—

(a) where the cared-for person has capacity to consent to being represented and supported by that person, the cared-for person does consent, or

(b) where the cared-for person lacks capacity to consent to being represented and supported by that person, the responsible body is satisfied that being represented and supported by that person would be in the cared-for person's best interests.

43

(1) If the cared-for person has an appropriate person, the responsible body must take all reasonable steps to appoint an IMCA to support the appropriate person if—

(a) sub-paragraph (2) or (3) provides that an IMCA should be appointed, and

(b) sub-paragraph (4) does not apply.

(2) An IMCA should be appointed if the appropriate person—

(a) has capacity to consent to being supported by an IMCA, and

(b) makes a request to the responsible body for an IMCA to be appointed.

(3) An IMCA should be appointed if—

(a) the appropriate person lacks capacity to consent to being supported by an IMCA, and

(b) the responsible body is satisfied the appropriate person's being supported by an IMCA would be in the cared-for person's best interests.

(4) This paragraph does not apply if an IMCA has been appointed under this paragraph and the appointment has not ceased to have effect.

Part 6 — Monitoring and reporting

44

(1) The appropriate authority may by regulations make provision for, and in connection with, requiring one or more bodies prescribed by the regulations to monitor, and report on, the operation of this Schedule.

(2) The regulations may include provision giving a prescribed body authority—

(a) to visit any place where arrangements authorised under this Schedule are carried out;

(b) to meet with cared-for persons;

(3) The “appropriate authority” means—

(a) in relation to the operation of this Schedule in relation to England, the Secretary of State, and

(b) in relation to the operation of this Schedule in relation to Wales, the Welsh Ministers.

Part 7 — Excluded arrangements: mental health

Excluded arrangements

45

This Schedule does not apply to arrangements if—

(a) they are mental health arrangements (see paragraphs 46 to 56), or

(b) they are not in accordance with mental health requirements (see paragraph 57).

Kinds of mental health arrangements

46

For the purposes of this Schedule arrangements in relation to a person (“P”) are “mental health arrangements” if paragraph 47, 48, 49, 50 or 51 applies.

47

This paragraph applies if—

(a) P is subject to the hospital treatment regime, and

(b) P is detained in a hospital under that regime.

48

This paragraph applies if—

(a) P is subject to the hospital treatment regime,

(b) P is not detained in a hospital under that regime, and

49

This paragraph applies if P is subject to—

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

(b) anything which has the same effect, under another England and Wales enactment,

and the arrangements are for enabling medical treatment for mental disorder in a hospital.

50

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

(2) Condition 1 is that P is subject to—

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

(b) a guardianship order under section 37 of that Act, or

(c) anything which has the same effect as something within paragraph (a) or (b), under another England and Wales enactment.

(3) Condition 2 is that the arrangements are or include arrangements for P to be accommodated in a hospital for the purpose of being given medical treatment for mental disorder.

(4) Condition 3 is that P objects—

(a) to being accommodated in a hospital for that purpose, or

(b) to being given some or all of that treatment.

(5) Condition 4 is that a donee or deputy has not made a valid decision to consent to each matter to which P objects.

(6) For provision about determining whether P objects see paragraph 52.

51

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

(2) Condition 1 is that—

(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.

(3) Condition 2 is that P is not subject to any of these—

(a) the hospital treatment regime;

(b) a community treatment order under section 17A of the Mental Health Act;

(d) a guardianship order under section 37 of the Mental Health Act;

(e) anything which has the same effect as something within paragraph (b), (c) or (d), under another England and Wales enactment.

(4) Condition 3 is that the arrangements are or include arrangements for P to be accommodated in a hospital for the purpose of being given medical treatment for mental disorder.

(5) Condition 4 is that P objects—

(a) to being accommodated in a hospital for that purpose, or

(b) to being given some or all of that treatment.

(6) Condition 5 is that a donee or deputy has not made a valid decision to consent to each matter to which P objects.

(7) For provision about determining whether P objects see paragraph 52.

52

(1) In determining whether P objects, 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;

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

Mental health arrangements: the hospital treatment regime

53

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

(a) an application, order or direction listed in column 1 of the Table, under the section of the Mental Health Act listed in column 2, or

(b) anything that has the same effect as any of those, under another England and Wales enactment,

subject to sub-paragraph (2).

(2) P is not subject to the hospital treatment regime during any period for which P is subject to—

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

(b) anything which has the same effect, under another England and Wales enactment.

Mental health arrangements: other definitions

54

In this Part—

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

“England and Wales enactment” means an enactment, in the Mental Health Act or elsewhere, which extends to England and Wales (whether or not it also extends elsewhere);

“hospital” has the same meaning as in Part 2 of the Mental Health Act;

“learning disability” has the meaning given by section 1(4) of the Mental Health Act;

“medical treatment” is to be read in accordance with paragraph 55.

55

In “medical treatment for mental disorder”—

(a) “medical treatment” has the same meaning as in the Mental Health Act (see section 145(1) and (4)), but

(b) in the case of a person with learning disability, the medical treatment is not to be considered by reason of that disability to be for mental disorder unless the disability is associated with abnormally aggressive or seriously irresponsible conduct by that person.

56

A decision of a donee or deputy is valid if it is made—

(a) within the scope of the person's authority as donee or deputy, and

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

Mental health requirements

57

(1) In this Schedule “mental health requirements” means any of the following—

(a) a requirement imposed in respect of a person by a guardian exercising the power under section 8 of the Mental Health Act;

(b) a condition or direction imposed or given in respect of a person by a responsible clinician exercising the power under section 17 of the Mental Health Act (leave of absence from hospital);

(c) a condition specified by a responsible clinician in a community treatment order made in respect of a person under section 17A of the Mental Health Act (for the imposition of conditions, see section 17B of that Act);

(d) a requirement imposed by a guardian in respect of a person who is the subject of a guardianship order under section 37 of the Mental Health Act (see section 40 of and Part 1 of Schedule 1 to that Act);

(e) a condition imposed by the Secretary of State on the discharge from hospital of a person subject to a restriction order under section 42 of the Mental Health Act;

(f) a condition imposed by any of the persons or bodies listed in sub-paragraph (3) when a person is conditionally discharged under section 73 of the Mental Health Act;

(g) anything which has the same effect as something within any of paragraphs (a) to (f), under another England and Wales enactment.

(2) And, for the purposes of this Schedule, arrangements which relate to a person are “not in accordance with mental health requirements” if the person is subject to mental health requirements and the arrangements are not in accordance with them.

(3) The persons or bodies for the purpose of sub-paragraph (1)(f) are—

(a) the First-tier Tribunal;

(b) the Mental Health Review Tribunal for Wales;

(d) the Welsh Ministers.

Part 8 — Transitory provision

58

Until the repeal of section 324 of the Education Act 1996 made by paragraph 4(1) and (9) of Schedule 1 to the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (anaw 2) comes fully into force—

(a) paragraph 10(1)(b) has effect as if there were substituted—

(b) if the cared-for person has an individual development plan or a statement of special educational needs— (i) the local authority responsible for maintaining that plan or statement, or (ii) in the case of an individual development plan which is not maintained by a local authority, the local authority whose area the cared-for person is in;

(b) paragraph 10(5)(b) has effect as if there were substituted—

(b) if the cared-for person has an individual development plan or a statement of special educational needs— (i) the local authority responsible for maintaining that plan or statement, or (ii) in the case of an individual development plan which is not maintained by a local authority, the local authority whose area the cared-for person is in;

, and

“statement of special educational needs” means a statement within the meaning of section 324 of the Education Act 1996.”

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