Office of Public Sector Information
PART 1 continued
(1) This section applies if an NHS body—
(a) is proposing to provide, or secure the provision of, serious medical treatment for a person (“P”) who lacks capacity to consent to the treatment, and
(b) is satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P’s best interests.
(2) But this section does not apply if P’s treatment is regulated by Part 4 of the Mental Health Act.
(3) Before the treatment is provided, the NHS body must instruct an independent mental capacity advocate to represent P.
(4) If the treatment needs to be provided as a matter of urgency, it may be provided even though the NHS body has not been able to comply with subsection (3).
(5) The NHS body must, in providing or securing the provision of treatment for P, take into account any information given, or submissions made, by the independent mental capacity advocate.
(6) “Serious medical treatment” means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority.
(7) “NHS body” has such meaning as may be prescribed by regulations made for the purposes of this section by—
(a) the Secretary of State, in relation to bodies in England, or
(b) the National Assembly for Wales, in relation to bodies in Wales.
(1) This section applies if an NHS body proposes to make arrangements—
(a) for the provision of accommodation in a hospital or care home for a person (“P”) who lacks capacity to agree to the arrangements, or
(b) for a change in P’s accommodation to another hospital or care home,
and is satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for it to consult in determining what would be in P’s best interests.
(2) But this section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.
(3) Before making the arrangements, the NHS body must instruct an independent mental capacity advocate to represent P unless it is satisfied that—
(a) the accommodation is likely to be provided for a continuous period which is less than the applicable period, or
(b) the arrangements need to be made as a matter of urgency.
(4) If the NHS body—
(a) did not instruct an independent mental capacity advocate to represent P before making the arrangements because it was satisfied that subsection (3)(a) or (b) applied, but
(b) subsequently has reason to believe that the accommodation is likely to be provided for a continuous period—
(i) beginning with the day on which accommodation was first provided in accordance with the arrangements, and
(ii) ending on or after the expiry of the applicable period,
it must instruct an independent mental capacity advocate to represent P.
(5) The NHS body must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate.
(6) “Care home” has the meaning given in section 3 of the Care Standards Act 2000 (c. 14).
(7) “Hospital” means—
(a) a health service hospital as defined by section 128 of the National Health Service Act 1977 (c. 49), or
(b) an independent hospital as defined by section 2 of the Care Standards Act 2000.
(8) “NHS body” has such meaning as may be prescribed by regulations made for the purposes of this section by—
(a) the Secretary of State, in relation to bodies in England, or
(b) the National Assembly for Wales, in relation to bodies in Wales.
(9) “Applicable period” means—
(a) in relation to accommodation in a hospital, 28 days, and
(b) in relation to accommodation in a care home, 8 weeks.
(1) This section applies if a local authority propose to make arrangements—
(a) for the provision of residential accommodation for a person (“P”) who lacks capacity to agree to the arrangements, or
(b) for a change in P’s residential accommodation,
and are satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate for them to consult in determining what would be in P’s best interests.
(2) But this section applies only if the accommodation is to be provided in accordance with—
(a) section 21 or 29 of the National Assistance Act 1948 (c. 29), or
(b) section 117 of the Mental Health Act,
as the result of a decision taken by the local authority under section 47 of the National Health Service and Community Care Act 1990 (c. 19).
(3) This section does not apply if P is accommodated as a result of an obligation imposed on him under the Mental Health Act.
(4) Before making the arrangements, the local authority must instruct an independent mental capacity advocate to represent P unless they are satisfied that—
(a) the accommodation is likely to be provided for a continuous period of less than 8 weeks, or
(b) the arrangements need to be made as a matter of urgency.
(5) If the local authority—
(a) did not instruct an independent mental capacity advocate to represent P before making the arrangements because they were satisfied that subsection (4)(a) or (b) applied, but
(b) subsequently have reason to believe that the accommodation is likely to be provided for a continuous period that will end 8 weeks or more after the day on which accommodation was first provided in accordance with the arrangements,
they must instruct an independent mental capacity advocate to represent P.
(6) The local authority must, in deciding what arrangements to make for P, take into account any information given, or submissions made, by the independent mental capacity advocate.
Sections 37(3), 38(3) and (4) and 39(4) and (5) do not apply if there is—
(a) a person nominated by P (in whatever manner) as a person to be consulted in matters affecting his interests,
(b) a donee of a lasting power of attorney created by P,
(c) a deputy appointed by the court for P, or
(d) a donee of an enduring power of attorney (within the meaning of Schedule 4) created by P.
(1) The appropriate authority may make regulations—
(a) expanding the role of independent mental capacity advocates in relation to persons who lack capacity, and
(b) adjusting the obligation to make arrangements imposed by section 35.
(2) The regulations may, in particular—
(a) prescribe circumstances (different to those set out in sections 37, 38 and 39) in which an independent mental capacity advocate must, or circumstances in which one may, be instructed by a person of a prescribed description to represent a person who lacks capacity, and
(b) include provision similar to any made by section 37, 38, 39 or 40.
(3) “Appropriate authority” has the same meaning as in section 35.
(1) The Lord Chancellor must prepare and issue one or more codes of practice—
(a) for the guidance of persons assessing whether a person has capacity in relation to any matter,
(b) for the guidance of persons acting in connection with the care or treatment of another person (see section 5),
(c) for the guidance of donees of lasting powers of attorney,
(d) for the guidance of deputies appointed by the court,
(e) for the guidance of persons carrying out research in reliance on any provision made by or under this Act (and otherwise with respect to sections 30 to 34),
(f) for the guidance of independent mental capacity advocates,
(g) with respect to the provisions of sections 24 to 26 (advance decisions and apparent advance decisions), and
(h) with respect to such other matters concerned with this Act as he thinks fit.
(2) The Lord Chancellor may from time to time revise a code.
(3) The Lord Chancellor may delegate the preparation or revision of the whole or any part of a code so far as he considers expedient.
(4) It is the duty of a person to have regard to any relevant code if he is acting in relation to a person who lacks capacity and is doing so in one or more of the following ways—
(a) as the donee of a lasting power of attorney,
(b) as a deputy appointed by the court,
(c) as a person carrying out research in reliance on any provision made by or under this Act (see sections 30 to 34),
(d) as an independent mental capacity advocate,
(e) in a professional capacity,
(f) for remuneration.
(5) If it appears to a court or tribunal conducting any criminal or civil proceedings that—
(a) a provision of a code, or
(b) a failure to comply with a code,
is relevant to a question arising in the proceedings, the provision or failure must be taken into account in deciding the question.
(6) A code under subsection (1)(d) may contain separate guidance for deputies appointed by virtue of paragraph 1(2) of Schedule 5 (functions of deputy conferred on receiver appointed under the Mental Health Act).
(7) In this section and in section 43, “code” means a code prepared or revised under this section.
(1) Before preparing or revising a code, the Lord Chancellor must consult—
(a) the National Assembly for Wales, and
(b) such other persons as he considers appropriate.
(2) The Lord Chancellor may not issue a code unless—
(a) a draft of the code has been laid by him before both Houses of Parliament, and
(b) the 40 day period has elapsed without either House resolving not to approve the draft.
(3) The Lord Chancellor must arrange for any code that he has issued to be published in such a way as he considers appropriate for bringing it to the attention of persons likely to be concerned with its provisions.
(4) “40 day period”, in relation to the draft of a proposed code, means—
(a) if the draft is laid before one House on a day later than the day on which it is laid before the other House, the period of 40 days beginning with the later of the two days;
(b) in any other case, the period of 40 days beginning with the day on which it is laid before each House.
(5) In calculating the period of 40 days, no account is to be taken of any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.
(1) Subsection (2) applies if a person (“D”)—
(a) has the care of a person (“P”) who lacks, or whom D reasonably believes to lack, capacity,
(b) is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or
(c) is a deputy appointed by the court for P.
(2) D is guilty of an offence if he ill-treats or wilfully neglects P.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.
Mental Capacity Act 2005