Legalize / United Kingdom / Public General Act

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

(5) If one or more but not both or all the attorneys makes or joins in making an application for registration of the instrument—

(a) an attorney who is not an applicant as well as one who is may act pending the registration of the instrument as provided in paragraph 1(2),

(b) notice of the application must also be given under Part 3 of this Schedule to the other attorney or attorneys, and

(c) objection may validly be taken to the registration on a ground relating to an attorney or to the power of an attorney who is not an applicant as well as to one or the power of one who is an applicant.

(6) The Public Guardian is not precluded by paragraph 13(5) or (8) from registering an instrument and the court must not direct him not to do so under paragraph 13(10) if an enduring power subsists as respects some attorney who is not affected by the ground or grounds of the objection in question; and where the Public Guardian registers an instrument in that case, he must make against the registration an entry in the prescribed form.

(7) Sub-paragraph (6) does not preclude the court from revoking a power in so far as it confers a power on any other attorney in respect of whom the ground in paragraph 13(9)(d) or (e) is established; and where any ground in paragraph 13(9) affecting any other attorney is established the court must direct the Public Guardian to make against the registration an entry in the prescribed form.

(8) In sub-paragraph (4), “the requirements for the creation of enduring powers” means the provisions of—

(a) paragraph 2 other than sub-paragraphs (8) and (9), and

(b) the regulations mentioned in paragraph 2.

Joint attorneys

21

(1) In paragraph 2(5), the reference to the time when the attorney executes the instrument is to be read as a reference to the time when the second or last attorney executes the instrument.

(2) In paragraph 2(6) to (8), the reference to the attorney is to be read as a reference to any attorney under the power.

(3) Paragraph 13 has effect as if the ground of objection to the registration of the instrument specified in sub-paragraph (9)(e) applied to any attorney under the power.

(4) In paragraph 16(2), references to the attorney are to be read as including references to any attorney under the power.

(5) In paragraph 16(4), references to the attorney are to be read as including references to any attorney under the power.

(6) In paragraph 17, references to the attorney are to be read as including references to any attorney under the power.

Joint and several attorneys

22

(1) In paragraph 2(7), the reference to the bankruptcy of the attorney is to be read as a reference to the bankruptcy of the last remaining attorney under the power; and the bankruptcy of any other attorney under the power causes that person to cease to be an attorney under the power.

(1A) In paragraph 2(7), the reference to the making of a debt relief order (under Part 7A of the Insolvency Act 1986) in respect of the attorney is to be read as a reference to the making of a debt relief order in respect of the last remaining attorney under the power; and the making of a debt relief order in respect of any other attorney under the power causes that person to cease to be an attorney under the power.

(2) In paragraph 2(8), the reference to the suspension of the power is to be read as a reference to its suspension in so far as it relates to the attorney in respect of whom the interim bankruptcy restrictions order has effect.

(2A) In paragraph 2(8), the reference to the suspension of the power is to be read as a reference to its suspension in so far as it relates to the attorney in respect of whom the interim debt relief restrictions order has effect.

(3) The restriction upon disclaimer imposed by paragraph 4(6) applies only to those attorneys who have reason to believe that the donor is or is becoming mentally incapable.

Part 8 — Interpretation

23

(1) In this Schedule—

“enduring power” is to be construed in accordance with paragraph 2,

“mentally incapable” or “mental incapacity”, except where it refers to revocation at common law, means in relation to any person, that he is incapable by reason of mental disorder ... of managing and administering his property and affairs and “mentally capable” and “mental capacity” are to be construed accordingly,

“notice” means notice in writing, and

“prescribed”, except for the purposes of paragraph 2, means prescribed by regulations made for the purposes of this Schedule by the Lord Chancellor.

(1A) In sub-paragraph (1), “mental disorder” has the same meaning as in the Mental Health Act but disregarding the amendments made to that Act by the Mental Health Act 2007.

(2) Any question arising under or for the purposes of this Schedule as to what the donor of the power might at any time be expected to do is to be determined by assuming that he had full mental capacity at the time but otherwise by reference to the circumstances existing at that time.

SCHEDULE 5

Part 1 — Repeal of Part 7 of the Mental Health Act 1983

Existing receivers

1

(1) This paragraph applies where, immediately before the commencement day, there is a receiver (“R”) for a person (“P”) appointed under section 99 of the Mental Health Act.

(2) On and after that day—

(a) this Act applies as if R were a deputy appointed for P by the court, but with the functions that R had as receiver immediately before that day, and

(b) a reference in any other enactment to a deputy appointed by the court includes a person appointed as a deputy as a result of paragraph (a).

(3) On any application to it by R, the court may end R's appointment as P's deputy.

(4) Where, as a result of section 20(1), R may not make a decision on behalf of P in relation to a relevant matter, R must apply to the court.

(5) If, on the application, the court is satisfied that P is capable of managing his property and affairs in relation to the relevant matter—

(a) it must make an order ending R's appointment as P's deputy in relation to that matter, but

(b) it may, in relation to any other matter, exercise in relation to P any of the powers which it has under sections 15 to 19.

(6) If it is not satisfied, the court may exercise in relation to P any of the powers which it has under sections 15 to 19.

(7) R's appointment as P's deputy ceases to have effect if P dies.

(8) “Relevant matter” means a matter in relation to which, immediately before the commencement day, R was authorised to act as P's receiver.

(9) In sub-paragraph (1), the reference to a receiver appointed under section 99 of the Mental Health Act includes a reference to a person who by virtue of Schedule 5 to that Act was deemed to be a receiver appointed under that section.

Orders, appointments etc.

2

(1) Any order or appointment made, direction or authority given or other thing done which has, or by virtue of Schedule 5 to the Mental Health Act was deemed to have, effect under Part 7 of the Act immediately before the commencement day is to continue to have effect despite the repeal of Part 7.

(2) In so far as any such order, appointment, direction, authority or thing could have been made, given or done under sections 15 to 20 if those sections had then been in force—

(a) it is to be treated as made, given or done under those sections, and

(b) the powers of variation and discharge conferred by section 16(7) apply accordingly.

(3) Sub-paragraph (1)—

(a) does not apply to nominations under section 93(1) or (4) of the Mental Health Act, and

(b) as respects receivers, has effect subject to paragraph 1.

(4) This Act does not affect the operation of section 109 of the Mental Health Act (effect and proof of orders etc.) in relation to orders made and directions given under Part 7 of that Act.

(5) This paragraph is without prejudice to section 16 of the Interpretation Act 1978 (c. 30) (general savings on repeal).

Pending proceedings

3

(1) Any application for the exercise of a power under Part 7 of the Mental Health Act which is pending immediately before the commencement day is to be treated, in so far as a corresponding power is exercisable under sections 16 to 20, as an application for the exercise of that power.

(2) For the purposes of sub-paragraph (1) an application for the appointment of a receiver is to be treated as an application for the appointment of a deputy.

Appeals

4

(1) Part 7 of the Mental Health Act and the rules made under it are to continue to apply to any appeal brought by virtue of section 105 of that Act which has not been determined before the commencement day.

(2) If in the case of an appeal brought by virtue of section 105(1) (appeal to nominated judge) the judge nominated under section 93 of the Mental Health Act has begun to hear the appeal, he is to continue to do so but otherwise it is to be heard by a puisne judge of the High Court nominated under section 46.

Fees

5

All fees and other payments which, having become due, have not been paid to the former Court of Protection before the commencement day, are to be paid to the new Court of Protection.

Court records

6

(1) The records of the former Court of Protection are to be treated, on and after the commencement day, as records of the new Court of Protection and are to be dealt with accordingly under the Public Records Act 1958 (c. 51).

(2) On and after the commencement day, the Public Guardian is, for the purpose of exercising any of his functions, to be given such access as he may require to such of the records mentioned in sub-paragraph (1) as relate to the appointment of receivers under section 99 of the Mental Health Act.

Existing charges

7

This Act does not affect the operation in relation to a charge created before the commencement day of—

(a) so much of section 101(6) of the Mental Health Act as precludes a charge created under section 101(5) from conferring a right of sale or foreclosure during the lifetime of the patient, or

(b) section 106(6) of the Mental Health Act (charge created by virtue of section 106(5) not to cause interest to fail etc.).

Preservation of interests on disposal of property

8

Paragraph 8(1) of Schedule 2 applies in relation to any disposal of property (within the meaning of that provision) by a person living on 1st November 1960, being a disposal effected under the Lunacy Act 1890 (c. 5) as it applies in relation to the disposal of property effected under sections 16 to 20.

Accounts

9

Court of Protection Rules may provide that, in a case where paragraph 1 applies, R is to have a duty to render accounts—

(a) while he is receiver;

(b) after he is discharged.

Interpretation

10

In this Part of this Schedule—

(a) “the commencement day” means the day on which section 66(1)(a) (repeal of Part 7 of the Mental Health Act) comes into force,

(b) “the former Court of Protection” means the office abolished by section 45, and

Part 2 — Repeal of the Enduring Powers of Attorney Act 1985

Orders, determinations, etc.

11

(1) Any order or determination made, or other thing done, under the 1985 Act which has effect immediately before the commencement day continues to have effect despite the repeal of that Act.

(2) In so far as any such order, determination or thing could have been made or done under Schedule 4 if it had then been in force—

(a) it is to be treated as made or done under that Schedule, and

(b) the powers of variation and discharge exercisable by the court apply accordingly.

(3) Any instrument registered under the 1985 Act is to be treated as having been registered by the Public Guardian under Schedule 4.

(4) This paragraph is without prejudice to section 16 of the Interpretation Act 1978 (c. 30) (general savings on repeal).

Pending proceedings

12

(1) An application for the exercise of a power under the 1985 Act which is pending immediately before the commencement day is to be treated, in so far as a corresponding power is exercisable under Schedule 4, as an application for the exercise of that power.

(2) For the purposes of sub-paragraph (1)—

(a) a pending application under section 4(2) of the 1985 Act for the registration of an instrument is to be treated as an application to the Public Guardian under paragraph 4 of Schedule 4 and any notice given in connection with that application under Schedule 1 to the 1985 Act is to be treated as given under Part 3 of Schedule 4,

(b) a notice of objection to the registration of an instrument is to be treated as a notice of objection under paragraph 13 of Schedule 4, and

(c) pending proceedings under section 5 of the 1985 Act are to be treated as proceedings on an application for the exercise by the court of a power which would become exercisable in relation to an instrument under paragraph 16(2) of Schedule 4 on its registration.

Appeals

13

(1) The 1985 Act and, so far as relevant, the provisions of Part 7 of the Mental Health Act and the rules made under it as applied by section 10 of the 1985 Act are to continue to have effect in relation to any appeal brought by virtue of section 10(1)(c) of the 1985 Act which has not been determined before the commencement day.

(2) If, in the case of an appeal brought by virtue of section 105(1) of the Mental Health Act as applied by section 10(1)(c) of the 1985 Act (appeal to nominated judge), the judge nominated under section 93 of the Mental Health Act has begun to hear the appeal, he is to continue to do so but otherwise the appeal is to be heard by a puisne judge of the High Court nominated under section 46.

Exercise of powers of donor as trustee

14

(1) Section 2(8) of the 1985 Act (which prevents a power of attorney under section 25 of the Trustee Act 1925 (c. 19) as enacted from being an enduring power) is to continue to apply to any enduring power—

(a) created before 1st March 2000, and

(b) having effect immediately before the commencement day.

(2) Section 3(3) of the 1985 Act (which entitles the donee of an enduring power to exercise the donor's powers as trustee) is to continue to apply to any enduring power to which, as a result of the provision mentioned in sub-paragraph (3), it applies immediately before the commencement day.

(3) The provision is section 4(3)(a) of the Trustee Delegation Act 1999 (c. 15) (which provides for section 3(3) of the 1985 Act to cease to apply to an enduring power when its registration is cancelled, if it was registered in response to an application made before 1st March 2001).

(4) Even though section 4 of the 1999 Act is repealed by this Act, that section is to continue to apply in relation to an enduring power—

(a) to which section 3(3) of the 1985 Act applies as a result of sub-paragraph (2), or

(b) to which, immediately before the repeal of section 4 of the 1999 Act, section 1 of that Act applies as a result of section 4 of it.

(5) The reference in section 1(9) of the 1999 Act to section 4(6) of that Act is to be read with sub-paragraphs (2) to (4).

Interpretation

15

In this Part of this Schedule, “the commencement day” means the day on which section 66(1)(b) (repeal of the 1985 Act) comes into force.

SCHEDULE 6

Fines and Recoveries Act 1833 (c. 74)

1

(1) The Fines and Recoveries Act 1833 (c. 74) is amended as follows.

(2) In section 33 (case where protector of settlement lacks capacity to act), for the words from “shall be incapable” to “is incapable as aforesaid” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to manage his property and affairs, the Court of Protection is to take his place as protector of the settlement while he lacks capacity ”.

(3) In sections 48 and 49 (mental health jurisdiction), for each reference to the judge having jurisdiction under Part 7 of the Mental Health Act substitute a reference to the Court of Protection.

Improvement of Land Act 1864 (c. 114)

2

In section 68 of the Improvement of Land Act 1864 (c. 114) (apportionment of rentcharges)—

(a) for “, curator, or receiver of” substitute “ or curator of, or a deputy with powers in relation to property and affairs appointed by the Court of Protection for, ”, and

(b) for “or patient within the meaning of Part VII of the Mental Health Act 1983” substitute “ person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to receive the notice ”.

Trustee Act 1925 (c. 19)

3

(1) The Trustee Act 1925 (c. 19) is amended as follows.

(2) In section 36 (appointment of new trustee)—

(a) in subsection (6C), for the words from “a power of attorney” to the end, substitute “ an enduring power of attorney or lasting power of attorney registered under the Mental Capacity Act 2005 ”, and

(b) in subsection (9)—

(i) for the words from “is incapable” to “exercising” substitute “ lacks capacity to exercise ”, and

(ii) for the words from “the authority” to the end substitute “ the Court of Protection ”.

(3) In section 41(1) (power of court to appoint new trustee) for the words from “is incapable” to “exercising” substitute “ lacks capacity to exercise ”.

(4) In section 54 (mental health jurisdiction)—

(a) for subsection (1) substitute—

(1) Subject to subsection (2), the Court of Protection may not make an order, or give a direction or authority, in relation to a person who lacks capacity to exercise his functions as trustee, if the High Court may make an order to that effect under this Act.

(b) in subsection (2)—

(i) for the words from the beginning to “of a receiver” substitute “ Where a person lacks capacity to exercise his functions as a trustee and a deputy is appointed for him by the Court of Protection or an application for the appointment of a deputy ”,

(ii) for “the said authority”, in each place, substitute “ the Court of Protection ”, and

(iii) for “the patient”, in each place, substitute “ the person concerned ”, and

(5) In section 55 (order made on particular allegation to be conclusive evidence of it)—

(a) for the words from “Part VII” to “Northern Ireland” substitute “ sections 15 to 20 of the Mental Capacity Act 2005 or any corresponding provisions having effect in Northern Ireland ”, and

(b) for paragraph (a) substitute—

(a) that a trustee or mortgagee lacks capacity in relation to the matter in question;

(6) In section 68 (definitions), at the end add—

(3) Any reference in this Act to a person who lacks capacity in relation to a matter is to a person— (a) who lacks capacity within the meaning of the Mental Capacity Act 2005 in relation to that matter, or (b) in respect of whom the powers conferred by section 48 of that Act are exercisable and have been exercised in relation to that matter.

Law of Property Act 1925 (c. 20)

4

(1) The Law of Property Act 1925 (c. 20) is amended as follows.

(2) In section 22 (conveyances on behalf of persons who lack capacity)—

(a) in subsection (1)—

(i) for the words from “in a person suffering” to “is acting” substitute “ , either solely or jointly with any other person or persons, in a person lacking capacity (within the meaning of the Mental Capacity Act 2005) to convey or create a legal estate, a deputy appointed for him by the Court of Protection or (if no deputy is appointed ”, and

(ii) for “the authority having jurisdiction under Part VII of the Mental Health Act 1983” substitute “ the Court of Protection ”,

(b) in subsection (2), for “is incapable, by reason of mental disorder, of exercising” substitute “ lacks capacity (within the meaning of that Act) to exercise ”, and

(c) in subsection (3), for the words from “an enduring power” to the end substitute “ an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act) is entitled to act for the trustee who lacks capacity in relation to the dealing. ”.

(3) In section 205(1) (interpretation), omit paragraph (xiii).

Administration of Estates Act 1925 (c. 23)

5

(1) The Administration of Estates Act 1925 (c. 23) is amended as follows.

(2) In section 41(1) (powers of personal representatives to appropriate), in the proviso—

(a) in paragraph (ii)—

(i) for the words from “is incapable” to “the consent” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to give the consent, it ”, and

(ii) for “or receiver” substitute “ or a person appointed as deputy for him by the Court of Protection ”, and

(b) in paragraph (iv), for “no receiver is acting for a person suffering from mental disorder” substitute “ no deputy is appointed for a person who lacks capacity to consent ”.

(3) Omit section 55(1)(viii) (definitions of “person of unsound mind” and “defective”).

National Assistance Act 1948 (c. 29)

6

In section 49 of the National Assistance Act 1948 (c. 29) (expenses of council officers acting for persons who lack capacity)—

(a) for the words from “applies” to “affairs of a patient” substitute “ applies for appointment by the Court of Protection as a deputy ”, and

(b) for “such functions” substitute “ his functions as deputy ”.

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

7

In section 1 of the U.S.A. Veterans' Pensions (Administration) Act 1949 (c. 45) (administration of pensions)—

(a) in subsection (4), omit the words from “or for whom” to “1983”, and

(b) after subsection (4), insert—

(4A) An agreement under subsection (1) is not to be made in relation to a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) for the purposes of this Act if— (a) there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for the person by the Court of Protection, and (b) the donee or deputy has power in relation to the person for the purposes of this Act. (4B) The proviso at the end of subsection (4) also applies in relation to subsection (4A).

Intestates' Estates Act 1952 (c. 64)

8

In Schedule 2 to the Intestates' Estates Act 1952 (c. 64) (rights of surviving spouse or civil partner in relation to home), for paragraph 6(1) substitute—

(1) Where the surviving spouse or civil partner lacks capacity (within the meaning of the Mental Capacity Act 2005) to make a requirement or give a consent under this Schedule, the requirement or consent may be made or given by a deputy appointed by the Court of Protection with power in that respect or, if no deputy has that power, by that court.

Variation of Trusts Act 1958 (c. 53)

9

In section 1 of the Variation of Trusts Act 1958 (c. 53) (jurisdiction of courts to vary trusts)—

(a) in subsection (3), for the words from “shall be determined” to the end substitute “ who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his assent is to be determined by the Court of Protection ”, and

(b) in subsection (6), for the words from “the powers” to the end substitute “ the powers of the Court of Protection ”.

Administration of Justice Act 1960 (c. 65)

10

In section 12(1)(b) of the Administration of Justice Act 1960 (c. 65) (contempt of court to publish information about proceedings in private relating to persons with incapacity) for the words from “under Part VIII” to “that Act” substitute “ under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 ”.

Industrial and Provident Societies Act 1965 (c. 12)

11

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Compulsory Purchase Act 1965 (c. 56)

12

In Schedule 1 to the Compulsory Purchase Act 1965 (c. 56) (persons without power to sell their interests), for paragraph 1(2)(b) substitute—

(b) do not have effect in relation to a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) for the purposes of this Act if— (i) there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for the person by the Court of Protection, and (ii) the donee or deputy has power in relation to the person for the purposes of this Act.

Leasehold Reform Act 1967 (c. 88)

13

(1) For section 26(2) of the Leasehold Reform Act 1967 (c. 88) (landlord lacking capacity) substitute—

(2) Where a landlord lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise his functions as a landlord, those functions are to be exercised— (a) by a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for him by the Court of Protection, with power to exercise those functions, or (b) if no donee or deputy has that power, by a person authorised in that respect by that court.

(2) That amendment does not affect any proceedings pending at the commencement of this paragraph in which a receiver or a person authorised under Part 7 of the Mental Health Act is acting on behalf of the landlord.

Medicines Act 1968 (c. 67)

14

In section 72 of the Medicines Act 1968 (c. 67) (pharmacist lacking capacity)—

(a) in subsection (1)(c), for the words from “a receiver” to “1959” substitute “ he becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to carry on the business ”,

(b) after subsection (1) insert—

(1A) In subsection (1)(c), the reference to a person who lacks capacity to carry on the business is to a person— (a) in respect of whom there is a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the Mental Capacity Act 2005), or (b) for whom a deputy is appointed by the Court of Protection, and in relation to whom the donee or deputy has power for the purposes of this Act.

(i) for “receiver” substitute “ deputy ”, and

(ii) after “guardian” insert “ or from the date of registration of the instrument appointing the donee ”, and

(d) in subsection (4)(c), for “receiver” substitute “ donee, deputy ”.

Family Law Reform Act 1969 (c. 46)

15

For section 21(4) of the Family Law Reform Act 1969 (c. 46) (consent required for taking of bodily sample from person lacking capacity), substitute—

(4) A bodily sample may be taken from a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to give his consent, if consent is given by the court giving the direction under section 20 or by— (a) a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or (b) a deputy appointed, or any other person authorised, by the Court of Protection, with power in that respect.

16

(1) Schedule 1 to the Local Authority Social Services Act 1970 (c. 42) (enactments conferring functions assigned to social services committee) is amended as follows.

(2) In the entry for section 49 of the National Assistance Act 1948 (expenses of local authority officer appointed for person who lacks capacity) for “receiver” substitute “ deputy ”.

(3) At the end, insert—

Mental Capacity Act 2005
Section 39	Instructing independent mental capacity advocate before providing accommodation for person lacking capacity.
Section 49	Reports in proceedings.

Courts Act 1971 (c. 23)

17

In Part 1A of Schedule 2 to the Courts Act 1971 (c. 23) (office-holders eligible for appointment as circuit judges), omit the reference to a Master of the Court of Protection.

Local Government Act 1972 (c. 70)

18

(1) Omit section 118 of the Local Government Act 1972 (c. 70) (payment of pension etc. where recipient lacks capacity).

(2) Sub-paragraph (3) applies where, before the commencement of this paragraph, a local authority has, in respect of a person referred to in that section as “the patient”, made payments under that section—

(a) to an institution or person having the care of the patient, or

(b) in accordance with subsection (1)(a) or (b) of that section.

(3) The local authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (1)(a) or (b) of that section, despite the repeal made by sub-paragraph (1).

Matrimonial Causes Act 1973 (c. 18)

19

In section 40 of the Matrimonial Causes Act 1973 (c. 18) (payments to person who lacks capacity) (which becomes subsection (1))—

(a) for the words from “is incapable” to “affairs” substitute “ (“P”) lacks capacity (within the meaning of the Mental Capacity Act 2005) in relation to the provisions of the order ”,

(b) for “that person under Part VIII of that Act” substitute “ P under that Act ”,

(d) at the end insert—

(2) In carrying out any functions of his in relation to an order made under subsection (1), D must act in P's best interests (within the meaning of that Act).

Juries Act 1974 (c. 23)

20

In Schedule 1 to the Juries Act 1974 (c. 23) (disqualification for jury service), for paragraph 3 substitute—

(3) A person who lacks capacity, within the meaning of the Mental Capacity Act 2005, to serve as a juror.

Consumer Credit Act 1974 (c. 39)

21

For section 37(1)(c) of the Consumer Credit Act 1974 (c. 39) (termination of consumer credit licence if holder lacks capacity) substitute—

(c) becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to carry on the activities covered by the licence.

Solicitors Act 1974 (c. 47)

22

(1) The Solicitors Act 1974 (c. 47) is amended as follows.

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

(3) In section 62(4) (contentious business agreements made by clients) for paragraphs (c) and (d) substitute—

(c) as a deputy for him appointed by the Court of Protection with powers in relation to his property and affairs, or (d) as another person authorised under that Act to act on his behalf.

(4) In paragraph 1(1) of Schedule 1 (circumstances in which Law Society may intervene in solicitor's practice), for paragraph (f) substitute—

(f) a solicitor lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as a solicitor and powers under sections 15 to 20 or section 48 of that Act are exercisable in relation to him;

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

23

In section 31 of the Local Government (Miscellaneous Provisions) Act 1976 (c. 57) (the title to which becomes “Indemnities for local authority officers appointed as deputies or administrators”), for the words from “as a receiver” to “1959” substitute “ as a deputy for a person by the Court of Protection ”.

Sale of Goods Act 1979 (c. 54)

24

In section 3(2) of the Sale of Goods Act 1979 (c. 54) (capacity to buy and sell) the words “mental incapacity or” cease to have effect in England and Wales.

Limitation Act 1980 (c. 58)

25

In section 38 of the Limitation Act 1980 (c. 58) (interpretation) substitute—

(a) in subsection (2) for “of unsound mind” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to conduct legal proceedings ”, and

(b) omit subsections (3) and (4).

Public Passenger Vehicles Act 1981 (c. 14)

26

In section 57(2)(c) of the Public Passenger Vehicles Act 1981 (c. 14) (termination of public service vehicle licence if holder lacks capacity) for the words from “becomes a patient” to “or” substitute “ becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to use a vehicle under the licence, or ”.

Judicial Pensions Act 1981 (c. 20)

27

In Schedule 1 to the Judicial Pensions Act 1981 (c. 20) (pensions of Supreme Court officers, etc.), in paragraph 1, omit the reference to a Master of the Court of Protection except in the case of a person holding that office immediately before the commencement of this paragraph or who had previously retired from that office or died.

Supreme Court Act 1981 (c. 54)

28

In Schedule 2 to the Supreme Court Act 1981 (c. 54) (qualifications for appointment to office in Supreme Court), omit paragraph 11 (Master of the Court of Protection).

Mental Health Act 1983 (c. 20)

29

(1) The Mental Health Act is amended as follows.

(2) In section 134(3) (cases where correspondence of detained patients may not be withheld) for paragraph (b) substitute—

(b) any judge or officer of the Court of Protection, any of the Court of Protection Visitors or any person asked by that Court for a report under section 49 of the Mental Capacity Act 2005 concerning the patient;

(3) In section 139 (protection for acts done in pursuance of 1983 Act), in subsection (1), omit from “or in, or in pursuance” to “Part VII of this Act,”.

(4) Section 142 (payment of pension etc. where recipient lacks capacity) ceases to have effect in England and Wales.

(5) Sub-paragraph (6) applies where, before the commencement of sub-paragraph (4), an authority has, in respect of a person referred to in that section as “the patient”, made payments under that section—

(a) to an institution or person having the care of the patient, or

(b) in accordance with subsection (2)(a) or (b) of that section.

(6) The authority may, in respect of the patient, continue to make payments under that section to that institution or person, or in accordance with subsection (2)(a) or (b) of that section, despite the amendment made by sub-paragraph (4).

(7) In section 145(1) (interpretation), in the definition of “patient”, omit “(except in Part VII of this Act)”.

(8) In section 146 (provisions having effect in Scotland), omit from “104(4)” to “section),”.

(9) In section 147 (provisions having effect in Northern Ireland), omit from “104(4)” to “section),”.

Administration of Justice Act 1985 (c. 61)

30

In section 18(3) of the Administration of Justice Act 1985 (c. 61) (licensed conveyancer who lacks capacity), for the words from “that person” to the end substitute “ he becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to practise as a licensed conveyancer. ”.

Insolvency Act 1986 (c. 45)

31

(1) The Insolvency Act 1986 (c. 45) is amended as follows.

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

(3) In section 390 (people not qualified to be insolvency practitioners), in subsection (4)—

(a) omit the “or” immediately after paragraph (b),

(b) in paragraph (c), omit “Part VII of the Mental Health Act 1983 or”, and

, or (d) he lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as an insolvency practitioner.

Building Societies Act 1986 (c. 53)

32

In section 102D(9) of the Building Societies Act 1986 (c. 53) (references to a person holding an account on trust for another)—

(a) in paragraph (a), for “Part VII of the Mental Health Act 1983” substitute “ the Mental Capacity Act 2005 ”, and

(b) for paragraph (b) substitute—

(b) to an attorney holding an account for another person under— (i) an enduring power of attorney or lasting power of attorney registered under the Mental Capacity Act 2005, or (ii) an enduring power registered under the Enduring Powers of Attorney (Northern Ireland) Order 1987;

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

33

In section 3 of the Public Trustee and Administration of Funds Act 1986 (c. 57) (functions of the Public Trustee)—

(a) for subsections (1) to (5) substitute—

(1) The Public Trustee may exercise the functions of a deputy appointed by the Court of Protection.

(b) in subsection (6), for “the 1906 Act” substitute “ the Public Trustee Act 1906 ”, and

Patronage (Benefices) Measure 1986 (No.3)

34

(1) The Patronage (Benefices) Measure 1986 (No. 3) is amended as follows.

(2) In section 5 (rights of patronage exercisable otherwise than by registered patron), after subsection (3) insert—

(3A) The reference in subsection (3) to a power of attorney does not include an enduring power of attorney or lasting power of attorney (within the meaning of the Mental Capacity Act 2005).

(3) In section 9 (information to be sent to designated officer when benefice becomes vacant), after subsection (5) insert—

(5A) Subsections (5B) and (5C) apply where the functions of a registered patron are, as a result of paragraph 10 of Schedule 2 to the Mental Capacity Act 2005 (patron's loss of capacity to discharge functions), to be discharged by an individual appointed by the Court of Protection. (5B) If the individual is a clerk in Holy Orders, subsection (5) applies to him as it applies to the registered patron. (5C) If the individual is not a clerk in Holy Orders, subsection (1) (other than paragraph (b)) applies to him as it applies to the registered patron.

Courts and Legal Services Act 1990 (c. 41)

35

(1) The Courts and Legal Services Act 1990 (c. 41) is amended as follows.

(2) In Schedule 11 (judges etc. barred from legal practice), for the reference to a Master of the Court of Protection substitute a reference to each of the following—

(a) Senior Judge of the Court of Protection

(b) President of the Court of Protection

(3) In paragraph 5(3) of Schedule 14 (exercise of powers of intervention in registered foreign lawyer's practice), for paragraph (f) substitute—

(f) he lacks capacity (within the meaning of the Mental Capacity Act 2005) to act as a registered foreign lawyer and powers under sections 15 to 20 or section 48 are exercisable in relation to him;

Child Support Act 1991 (c. 48)

36

In section 50 of the Child Support Act 1991 (c. 48) (unauthorised disclosure of information)—

(a) in subsection (8)—

(i) immediately after paragraph (a), insert “ or ”,

(ii) omit paragraphs (b) and (d) and the “or” immediately after paragraph (c), and

(iii) for “, receiver, custodian or appointee” substitute “ or custodian ”, and

(b) after that subsection, insert—

(9) Where the person to whom the information relates lacks capacity (within the meaning of the Mental Capacity Act 2005) to consent to its disclosure, the appropriate person is— (a) a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or (b) a deputy appointed for him, or any other person authorised, by the Court of Protection, with power in that respect.

37

In section 123 of the Social Security Administration Act 1992 (c. 5) (unauthorised disclosure of information)—

(a) in subsection (10), omit—

(i) in paragraph (b), “a receiver appointed under section 99 of the Mental Health Act 1983 or”,

(ii) in paragraph (d)(i), “sub-paragraph (a) of rule 41(1) of the Court of Protection Rules 1984 or”,

(iii) in paragraph (d)(ii), “a receiver ad interim appointed under sub-paragraph (b) of the said rule 41(1) or”, and

(iv) “receiver,”, and

(b) after that subsection, insert—

(11) Where the person to whom the information relates lacks capacity (within the meaning of the Mental Capacity Act 2005) to consent to its disclosure, the appropriate person is— (a) a donee of an enduring power of attorney or lasting power of attorney (within the meaning of that Act), or (b) a deputy appointed for him, or any other person authorised, by the Court of Protection, with power in that respect.

Judicial Pensions and Retirement Act 1993 (c. 8)

38

(1) The Judicial Pensions and Retirement Act 1993 (c. 8) is amended as follows.

(2) In Schedule 1 (qualifying judicial offices), in Part 2, under the cross-heading “Court officers”, omit the reference to a Master of the Court of Protection except in the case of a person holding that office immediately before the commencement of this sub-paragraph or who had previously retired from that office or died.

(3) In Schedule 5(retirement: the relevant offices), omit the entries relating to the Master and Deputy or temporary Master of the Court of Protection, except in the case of a person holding any of those offices immediately before the commencement of this sub-paragraph.

(4) In Schedule 7(retirement: transitional provisions), omit paragraph 5(5)(i)(g) except in the case of a person holding office as a deputy or temporary Master of the Court of Protection immediately before the commencement of this sub-paragraph.

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

39

(1) For paragraph 4 of Schedule 2 to the Leasehold Reform, Housing and Urban Development Act 1993 (c. 28) (landlord under a disability), substitute—

(4) (1) This paragraph applies where a Chapter I or Chapter II landlord lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise his functions as a landlord. (2) For the purposes of the Chapter concerned, the landlord's place is to be taken— (a) by a donee of an enduring power of attorney or lasting power of attorney (within the meaning of the 2005 Act), or a deputy appointed for him by the Court of Protection, with power to exercise those functions, or (b) if no deputy or donee has that power, by a person authorised in that respect by that court.

(2) That amendment does not affect any proceedings pending at the commencement of this paragraph in which a receiver or a person authorised under Part 7 of the Mental Health Act 1983 (c. 20) is acting on behalf of the landlord.

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

40

(1) The Goods Vehicles (Licensing of Operators) Act 1995 (c. 23) is amended as follows.

(2) In section 16(5) (termination of licence), for “he becomes a patient within the meaning of Part VII of the Mental Health Act 1983” substitute “ he becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to use a vehicle under the licence ”.

(3) In section 48 (licence not to be transferable, etc.)—

(a) in subsection (2)—

(i) for “or become a patient within the meaning of Part VII of the Mental Health Act 1983” substitute “ , or become a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to use a vehicle under the licence, ”, and

(ii) in paragraph (a), for “became a patient” substitute “ became a person who lacked capacity in that respect ”, and

(b) in subsection (5), for “a patient within the meaning of Part VII of the Mental Health Act 1983” substitute “ a person lacking capacity ”.

Disability Discrimination Act 1995 (c. 50)

41

In section 20(7) of the Disability Discrimination Act 1995 (c. 50) (regulations to disapply provisions about incapacity), in paragraph (b), for “Part VII of the Mental Health Act 1983” substitute “ the Mental Capacity Act 2005 ”.

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

42

(1) The Trusts of Land and Appointment of Trustees Act 1996 (c. 47) is amended as follows.

(2) In section 9 (delegation by trustees), in subsection (6), for the words from “an enduring power” to the end substitute “ an enduring power of attorney or lasting power of attorney within the meaning of the Mental Capacity Act 2005 ”.

(3) In section 20 (the title to which becomes “ Appointment of substitute for trustee who lacks capacity ”)—

(a) in subsection (1)(a), for “is incapable by reason of mental disorder of exercising” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to exercise ”, and

(b) in subsection (2)—

(i) for paragraph (a) substitute—

(a) a deputy appointed for the trustee by the Court of Protection,

(ii) in paragraph (b), for the words from “a power of attorney” to the end substitute “ an enduring power of attorney or lasting power of attorney registered under the Mental Capacity Act 2005 ”, and

(iii) in paragraph (c), for the words from “the authority” to the end substitute “ the Court of Protection ”.

Human Rights Act 1998 (c. 42)

43

In section 4(5) of the Human Rights Act 1998 (c. 42) (courts which may make declarations of incompatibility), after paragraph (e) insert—

(f) the Court of Protection, in any matter being dealt with by the President of the Family Division, the Vice-Chancellor or a puisne judge of the High Court.

Access to Justice Act 1999 (c. 22)

44

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Adoption and Children Act 2002 (c. 38)

45

In section 52(1)(a) of the Adoption and Children Act 2002 (c. 38) (parental consent to adoption), for “is incapable of giving consent” substitute “ lacks capacity (within the meaning of the Mental Capacity Act 2005) to give consent ”.

Licensing Act 2003 (c. 17)

46

(1) The Licensing Act 2003 (c. 17) is amended as follows.

(2) In section 27(1) (lapse of premises licence), for paragraph (b) substitute—

(b) becomes a person who lacks capacity (within the meaning of the Mental Capacity Act 2005) to hold the licence,

(3) In section 47 (interim authority notice in relation to premises licence)—

(a) in subsection (5), for paragraph (b) substitute—

(b) the former holder lacks capacity (within the meaning of the Mental Capacity Act 2005) to hold the licence and that person acts for him under an enduring power of attorney or lasting power of attorney registered under that Act,

, and

(b) in subsection (10), omit the definition of “mentally incapable”.

Courts Act 2003 (c. 39)

47

(1) The Courts Act 2003 (c. 39) is amended as follows.

(2) In section 1(1) (the courts in relation to which the Lord Chancellor must discharge his general duty), after paragraph (a) insert—

(aa) the Court of Protection,

(3) In section 64(2) (judicial titles which the Lord Chancellor may by order alter)—

(a) omit the reference to a Master of the Court of Protection, and

(b) at the appropriate place insert a reference to each of the following—

(i) Senior Judge of the Court of Protection,

(ii) President of the Court of Protection,

(iii) Vice-president of the Court of Protection.

SCHEDULE 7

People who lack capacity

4A

(1) This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2) But that is subject to—

(a) the following provisions of this section, and

(b) section 4B.

(3) D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4) A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5) D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

(5) D may deprive P of liberty if, by doing so, D is carrying out arrangements authorised under Schedule AA1 (arrangements enabling the care and treatment of persons who lack capacity).

4B

(1) If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.

(2) The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.

(3) The second condition is that the deprivation of liberty—

(a) is wholly or partly for the purpose of—

(i) giving P life-sustaining treatment, or

(ii) doing any vital act, or

(b) consists wholly or partly of—

(i) giving P life-sustaining treatment, or

(ii) doing any vital act.

(4) The third condition is that the deprivation of liberty is necessary in order to—

(a) give the life-sustaining treatment, or

(b) do the vital act.

(5) A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P's condition.

16A

(1) If a person is ineligible to be deprived of liberty by this Act, the court may not include in a welfare order provision which authorises the person to be deprived of his liberty.

(2) If—

(a) a welfare order includes provision which authorises a person to be deprived of his liberty, and

(b) that person becomes ineligible to be deprived of liberty by this Act,

the provision ceases to have effect for as long as the person remains ineligible.

(3) Nothing in subsection (2) affects the power of the court under section 16(7) to vary or discharge the welfare order.

(4) For the purposes of this section—

(a) Schedule 1A applies for determining whether or not P is ineligible to be deprived of liberty by this Act;

(b) “welfare order” means an order under section 16(2)(a).

Powers of the court in relation to Schedule A1

21A

(1) This section applies if either of the following has been given under Schedule A1—

(a) a standard authorisation;

(b) an urgent authorisation.

(2) Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—

(a) whether the relevant person meets one or more of the qualifying requirements;

(b) the period during which the standard authorisation is to be in force;

(d) the conditions subject to which the standard authorisation is given.

(3) If the court determines any question under subsection (2), the court may make an order—

(a) varying or terminating the standard authorisation, or

(b) directing the supervisory body to vary or terminate the standard authorisation.

(4) Where an urgent authorisation has been given, the court may determine any question relating to any of the following matters—

(a) whether the urgent authorisation should have been given;

(b) the period during which the urgent authorisation is to be in force;

(5) Where the court determines any question under subsection (4), the court may make an order—

(a) varying or terminating the urgent authorisation, or

(b) directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.

(6) Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination.

(7) An order under subsection (6) may, in particular, exclude a person from liability.

39A

(1) This section applies if—

(a) a person (“P”) becomes subject to Schedule A1, and

(b) the managing authority of the relevant hospital or care home 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 to consult in determining what would be in P's best interests.

(2) The managing authority must notify the supervisory body that this section applies.

(3) The supervisory body must instruct an independent mental capacity advocate to represent P.

(4) Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.

(5) This section is subject to paragraph 161 of Schedule A1.

(6) For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.

39B

(1) This section applies for the purposes of section 39A.

(2) P becomes subject to Schedule A1 in any of the following cases.

(3) The first case is where an urgent authorisation is given in relation to P under paragraph 76(2) of Schedule A1 (urgent authorisation given before request made for standard authorisation).

(4) The second case is where the following conditions are met.

(5) The first condition is that a request is made under Schedule A1 for a standard authorisation to be given in relation to P (“the requested authorisation”).

(6) The second condition is that no urgent authorisation was given under paragraph 76(2) of Schedule A1 before that request was made.

(7) The third condition is that the requested authorisation will not be in force on or before, or immediately after, the expiry of an existing standard authorisation.

(8) The expiry of a standard authorisation is the date when the authorisation is expected to cease to be in force.

(9) The third case is where, under paragraph 69 of Schedule A1, the supervisory body select a person to carry out an assessment of whether or not the relevant person is a detained resident.

39C

(1) This section applies if—

(a) an authorisation under Schedule A1 is in force in relation to a person (“P”),

(b) the appointment of a person as P's representative ends in accordance with regulations made under Part 10 of Schedule A1, and

(c) the managing authority of the relevant hospital or care home 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 to consult in determining what would be in P's best interests.

(2) The managing authority must notify the supervisory body that this section applies.

(3) The supervisory body must instruct an independent mental capacity advocate to represent P.

(4) Paragraph 159 of Schedule A1 makes provision about the role of an independent mental capacity advocate appointed under this section.

(5) The appointment of an independent mental capacity advocate under this section ends when a new appointment of a person as P's representative is made in accordance with Part 10 of Schedule A1.

(6) For the purposes of subsection (1), a person appointed under Part 10 of Schedule A1 to be P's representative is not, by virtue of that appointment, engaged in providing care or treatment for P in a professional capacity or for remuneration.

39D

(1) This section applies if—

(a) an authorisation under Schedule A1 is in force in relation to a person (“P”),

(b) P has a representative (“R”) appointed under Part 10 of Schedule A1, and

(2) The supervisory body must instruct an independent mental capacity advocate to represent P in any of the following cases.

(3) The first case is where P makes a request to the supervisory body to instruct an advocate.

(4) The second case is where R makes a request to the supervisory body to instruct an advocate.

(5) The third case is where the supervisory body have reason to believe one or more of the following—

(a) that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;

(b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;

(6) The duty in subsection (2) is subject to section 39E.

(7) If an advocate is appointed under this section, the advocate is, in particular, to take such steps as are practicable to help P and R to understand the following matters—

(a) the effect of the authorisation;

(b) the purpose of the authorisation;

(d) any conditions to which the authorisation is subject;

(e) the reasons why each assessor who carried out an assessment in connection with the request for the authorisation, or in connection with a review of the authorisation, decided that P met the qualifying requirement in question;

(f) the relevant rights;

(g) how to exercise the relevant rights.

(8) The advocate is, in particular, to take such steps as are practicable to help P or R—

(a) to exercise the right to apply to court, if it appears to the advocate that P or R wishes to exercise that right, or

(b) to exercise the right of review, if it appears to the advocate that P or R wishes to exercise that right.

(9) If the advocate helps P or R to exercise the right of review—

(a) the advocate may make submissions to the supervisory body on the question of whether a qualifying requirement is reviewable;

(b) the advocate may give information, or make submissions, to any assessor carrying out a review assessment.

(10) In this section—

“relevant rights” means—the right to apply to court, andthe right of review;

“right to apply to court” means the right to make an application to the court to exercise its jurisdiction under section 21A;

“right of review” means the right under Part 8 of Schedule A1 to request a review.

39E

(1) This section applies if an advocate is already representing P in accordance with an instruction under section 39D.

(2) Section 39D(2) does not require another advocate to be instructed, unless the following conditions are met.

(3) The first condition is that the existing advocate was instructed—

(a) because of a request by R, or

(b) because the supervisory body had reason to believe one or more of the things in section 39D(5).

(4) The second condition is that the other advocate would be instructed because of a request by P.

Power to adjust role of independent mental capacity advocate

Interim orders and directions

Scope of the Act

SCHEDULE A1

Part 1 — Authorisation to deprive residents of liberty etc

Application of Part

1

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

(2) The first condition is that a person (“P”) is detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.

(3) The second condition is that a standard or urgent authorisation is in force.

(4) The third condition is that the standard or urgent authorisation relates—

(a) to P, and

(b) to the hospital or care home in which P is detained.

Authorisation to deprive P of liberty

2

The managing authority of the hospital or care home may deprive P of his liberty by detaining him as mentioned in paragraph 1(2).

No liability for acts done for purpose of depriving P of liberty

3

(1) This paragraph applies to any act which a person (“D”) does for the purpose of detaining P as mentioned in paragraph 1(2).

(2) D does not incur any liability in relation to the act that he would not have incurred if P—

(a) had had capacity to consent in relation to D's doing the act, and

(b) had consented to D's doing the act.

No protection for negligent acts etc

4

(1) Paragraphs 2 and 3 do not exclude a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in doing any thing.

(2) Paragraphs 2 and 3 do not authorise a person to do anything otherwise than for the purpose of the standard or urgent authorisation that is in force.

(3) In a case where a standard authorisation is in force, paragraphs 2 and 3 do not authorise a person to do anything which does not comply with the conditions (if any) included in the authorisation.

Part 2 — Interpretation: main terms

Introduction

5

This Part applies for the purposes of this Schedule.

Detained resident

6

“Detained resident” means a person detained in a hospital or care home — for the purpose of being given care or treatment — in circumstances which amount to deprivation of the person's liberty.

Relevant person etc

7

In relation to a person who is, or is to be, a detained resident—

“relevant person” means the person in question;

“relevant hospital or care home” means the hospital or care home in question;

“relevant care or treatment” means the care or treatment in question.

Authorisations

8

“Standard authorisation” means an authorisation given under Part 4.

9

“Urgent authorisation” means an authorisation given under Part 5.

10

“Authorisation under this Schedule” means either of the following—

(a) a standard authorisation;

(b) an urgent authorisation.

11

(1) The purpose of a standard authorisation is the purpose which is stated in the authorisation in accordance with paragraph 55(1)(d).

(2) The purpose of an urgent authorisation is the purpose which is stated in the authorisation in accordance with paragraph 80(d).

Part 3 — The qualifying requirements

The qualifying requirements

12

(1) These are the qualifying requirements referred to in this Schedule—

(a) the age requirement;

(b) the mental health requirement;

(d) the best interests requirement;

(e) the eligibility requirement;

(f) the no refusals requirement.

(2) Any question of whether a person who is, or is to be, a detained resident meets the qualifying requirements is to be determined in accordance with this Part.

(3) In a case where—

(a) the question of whether a person meets a particular qualifying requirement arises in relation to the giving of a standard authorisation, and

(b) any circumstances relevant to determining that question are expected to change between the time when the determination is made and the time when the authorisation is expected to come into force,

those circumstances are to be taken into account as they are expected to be at the later time.

The age requirement

13

The relevant person meets the age requirement if he has reached 18.

The mental health requirement

14

(1) The relevant person meets the mental health requirement if he is suffering from mental disorder (within the meaning of the Mental Health Act, but disregarding any exclusion for persons with learning disability).

(2) An exclusion for persons with learning disability is any provision of the Mental Health Act which provides for a person with learning disability not to be regarded as suffering from mental disorder for one or more purposes of that Act.

The mental capacity requirement

15

The relevant person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.

The best interests requirement

16

(1) The relevant person meets the best interests requirement if all of the following conditions are met.

(2) The first condition is that the relevant person is, or is to be, a detained resident.

(3) The second condition is that it is in the best interests of the relevant person for him to be a detained resident.

(4) The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.

(5) The fourth condition is that it is a proportionate response to—

(a) the likelihood of the relevant person suffering harm, and

(b) the seriousness of that harm,

for him to be a detained resident.

The eligibility requirement

17

(1) The relevant person meets the eligibility requirement unless he is ineligible to be deprived of liberty by this Act.

(2) Schedule 1A applies for the purpose of determining whether or not P is ineligible to be deprived of liberty by this Act.

The no refusals requirement

18

The relevant person meets the no refusals requirement unless there is a refusal within the meaning of paragraph 19 or 20.

19

(1) There is a refusal if these conditions are met—

(a) the relevant person has made an advance decision;

(b) the advance decision is valid;

(2) Expressions used in this paragraph and any of sections 24, 25 or 26 have the same meaning in this paragraph as in that section.

20

(1) There is a refusal if it would be in conflict with a valid decision of a donee or deputy for the relevant person to be accommodated in the relevant hospital or care home for the purpose of receiving some or all of the relevant care or treatment—

(a) in circumstances which amount to deprivation of the person's liberty, or

(b) at all.

(2) A donee is a donee of a lasting power of attorney granted by the relevant person.

(3) 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.

Part 4 — Standard authorisations

Supervisory body to give authorisation

21

Only the supervisory body may give a standard authorisation.

22

The supervisory body may not give a standard authorisation unless—

(a) the managing authority of the relevant hospital or care home have requested it, or

(b) paragraph 71 applies (right of third party to require consideration of whether authorisation needed).

23

The managing authority may not make a request for a standard authorisation unless—

(a) they are required to do so by paragraph 24 (as read with paragraphs 27 to 29),

(b) they are required to do so by paragraph 25 (as read with paragraph 28), or

Duty to request authorisation: basic cases

24

(1) The managing authority must request a standard authorisation in any of the following cases.

(2) The first case is where it appears to the managing authority that the relevant person—

(a) is not yet accommodated in the relevant hospital or care home,

(b) is likely — at some time within the next 28 days — to be a detained resident in the relevant hospital or care home, and

(i) at that time, or

(ii) at some later time within the next 28 days,

to meet all of the qualifying requirements.

(3) The second case is where it appears to the managing authority that the relevant person—

(a) is already accommodated in the relevant hospital or care home,

(b) is likely — at some time within the next 28 days — to be a detained resident in the relevant hospital or care home, and

(i) at that time, or

(ii) at some later time within the next 28 days,

to meet all of the qualifying requirements.

(4) The third case is where it appears to the managing authority that the relevant person—

(a) is a detained resident in the relevant hospital or care home, and

(b) meets all of the qualifying requirements, or is likely to do so at some time within the next 28 days.

(5) This paragraph is subject to paragraphs 27 to 29.

Duty to request authorisation: change in place of detention

25

(1) The relevant managing authority must request a standard authorisation if it appears to them that these conditions are met.

(2) The first condition is that a standard authorisation—

(a) has been given, and

(b) has not ceased to be in force.

(3) The second condition is that there is, or is to be, a change in the place of detention.

(4) This paragraph is subject to paragraph 28.

26

(1) This paragraph applies for the purposes of paragraph 25.

(2) There is a change in the place of detention if the relevant person—

(a) ceases to be a detained resident in the stated hospital or care home, and

(b) becomes a detained resident in a different hospital or care home (“the new hospital or care home”).

(3) The stated hospital or care home is the hospital or care home to which the standard authorisation relates.

(4) The relevant managing authority are the managing authority of the new hospital or care home.

Other authority for detention: request for authorisation

27

(1) This paragraph applies if, by virtue of section 4A(3), a decision of the court authorises the relevant person to be a detained resident.

(2) Paragraph 24 does not require a request for a standard authorisation to be made in relation to that detention unless these conditions are met.

(3) The first condition is that the standard authorisation would be in force at a time immediately after the expiry of the other authority.

(4) The second condition is that the standard authorisation would not be in force at any time on or before the expiry of the other authority.

(5) The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the other authority.

(6) In this paragraph—

(a) the other authority is—

(i) the decision mentioned in sub-paragraph (1), or

(ii) any further decision of the court which, by virtue of section 4A(3), authorises, or is expected to authorise, the relevant person to be a detained resident;

(b) the expiry of the other authority is the time when the other authority is expected to cease to authorise the relevant person to be a detained resident.

Request refused: no further request unless change of circumstances

28

(1) This paragraph applies if—

(a) a managing authority request a standard authorisation under paragraph 24 or 25, and

(b) the supervisory body are prohibited by paragraph 50(2) from giving the authorisation.

(2) Paragraph 24 or 25 does not require that managing authority to make a new request for a standard authorisation unless it appears to the managing authority that—

(a) there has been a change in the relevant person's case, and

(b) because of that change, the supervisory body are likely to give a standard authorisation if requested.

Authorisation given: request for further authorisation

29

(1) This paragraph applies if a standard authorisation—

(a) has been given in relation to the detention of the relevant person, and

(b) that authorisation (“the existing authorisation”) has not ceased to be in force.

(2) Paragraph 24 does not require a new request for a standard authorisation (“the new authorisation”) to be made unless these conditions are met.

(3) The first condition is that the new authorisation would be in force at a time immediately after the expiry of the existing authorisation.

(4) The second condition is that the new authorisation would not be in force at any time on or before the expiry of the existing authorisation.

(5) The third condition is that it would, in the managing authority's view, be unreasonable to delay making the request until a time nearer the expiry of the existing authorisation.

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

Power to request authorisation

30

(1) This paragraph applies if—

(a) a standard authorisation has been given in relation to the detention of the relevant person,

(b) that authorisation (“the existing authorisation”) has not ceased to be in force,

(c) the requirement under paragraph 24 to make a request for a new standard authorisation does not apply, because of paragraph 29, and

(d) a review of the existing authorisation has been requested, or is being carried out, in accordance with Part 8.

(2) The managing authority may request a new standard authorisation which would be in force on or before the expiry of the existing authorisation; but only if it would also be in force immediately after that expiry.

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

(4) Further provision relating to cases where a request is made under this paragraph can be found in—

(a) paragraph 62 (effect of decision about request), and

(b) paragraph 124 (effect of request on Part 8 review).

Information included in request

31

A request for a standard authorisation must include the information (if any) required by regulations.

Records of requests

32

(1) The managing authority of a hospital or care home must keep a written record of—

(a) each request that they make for a standard authorisation, and

(b) the reasons for making each request.

(2) A supervisory body must keep a written record of each request for a standard authorisation that is made to them.

Relevant person must be assessed

33

(1) This paragraph applies if the supervisory body are requested to give a standard authorisation.

(2) The supervisory body must secure that all of these assessments are carried out in relation to the relevant person—

(a) an age assessment;

(b) a mental health assessment;

(d) a best interests assessment;

(e) an eligibility assessment;

(f) a no refusals assessment.

(3) The person who carries out any such assessment is referred to as the assessor.

(4) Regulations may be made about the period (or periods) within which assessors must carry out assessments.

(5) This paragraph is subject to paragraphs 49 and 133.

Age assessment

34

An age assessment is an assessment of whether the relevant person meets the age requirement.

Mental health assessment

35

A mental health assessment is an assessment of whether the relevant person meets the mental health requirement.

36

When carrying out a mental health assessment, the assessor must also—

(a) consider how (if at all) the relevant person's mental health is likely to be affected by his being a detained resident, and

(b) notify the best interests assessor of his conclusions.

Mental capacity assessment

37

A mental capacity assessment is an assessment of whether the relevant person meets the mental capacity requirement.

Best interests assessment

38

A best interests assessment is an assessment of whether the relevant person meets the best interests requirement.

39

(1) In carrying out a best interests assessment, the assessor must comply with the duties in sub-paragraphs (2) and (3).

(2) The assessor must consult the managing authority of the relevant hospital or care home.

(3) The assessor must have regard to all of the following—

(a) the conclusions which the mental health assessor has notified to the best interests assessor in accordance with paragraph 36(b);

(b) any relevant needs assessment;

(4) A relevant needs assessment is an assessment of the relevant person's needs which—

(a) was carried out in connection with the relevant person being accommodated in the relevant hospital or care home, and

(b) was carried out by or on behalf of—

(i) the managing authority of the relevant hospital or care home, or

(ii) the supervisory body.

(5) A relevant care plan is a care plan which—

(a) sets out how the relevant person's needs are to be met whilst he is accommodated in the relevant hospital or care home, and

(b) was drawn up by or on behalf of—

(i) the managing authority of the relevant hospital or care home, or

(ii) the supervisory body.

(6) The managing authority must give the assessor a copy of—

(a) any relevant needs assessment carried out by them or on their behalf, or

(b) any relevant care plan drawn up by them or on their behalf.

(7) The supervisory body must give the assessor a copy of—

(a) any relevant needs assessment carried out by them or on their behalf, or

(b) any relevant care plan drawn up by them or on their behalf.

(8) The duties in sub-paragraphs (2) and (3) do not affect any other duty to consult or to take the views of others into account.

40

(1) This paragraph applies whatever conclusion the best interests assessment comes to.

(2) The assessor must state in the best interests assessment the name and address of every interested person whom he has consulted in carrying out the assessment.

41

Paragraphs 42 and 43 apply if the best interests assessment comes to the conclusion that the relevant person meets the best interests requirement.

42

(1) The assessor must state in the assessment the maximum authorisation period.

(2) The maximum authorisation period is the shorter of these periods—

(a) the period which, in the assessor's opinion, would be the appropriate maximum period for the relevant person to be a detained resident under the standard authorisation that has been requested;

(b) 1 year, or such shorter period as may be prescribed in regulations.

(3) Regulations under sub-paragraph (2)(b)—

(a) need not provide for a shorter period to apply in relation to all standard authorisations;

(b) may provide for different periods to apply in relation to different kinds of standard authorisations.

(4) Before making regulations under sub-paragraph (2)(b) the Secretary of State must consult all of the following—

(a) each body required by regulations under paragraph 162 to monitor and report on the operation of this Schedule in relation to England;

(b) such other persons as the Secretary of State considers it appropriate to consult.

(5) Before making regulations under sub-paragraph (2)(b) the National Assembly for Wales must consult all of the following—

(a) each person or body directed under paragraph 163(2) to carry out any function of the Assembly of monitoring and reporting on the operation of this Schedule in relation to Wales;

(b) such other persons as the Assembly considers it appropriate to consult.

43

The assessor may include in the assessment recommendations about conditions to which the standard authorisation is, or is not, to be subject in accordance with paragraph 53.

44

(1) This paragraph applies if the best interests assessment comes to the conclusion that the relevant person does not meet the best interests requirement.

(2) If, on the basis of the information taken into account in carrying out the assessment, it appears to the assessor that there is an unauthorised deprivation of liberty, he must include a statement to that effect in the assessment.

(3) There is an unauthorised deprivation of liberty if the managing authority of the relevant hospital or care home are already depriving the relevant person of his liberty without authority of the kind mentioned in section 4A.

45

The duties with which the best interests assessor must comply are subject to the provision included in appointment regulations under Part 10 (in particular, provision made under paragraph 146).

Eligibility assessment

46

An eligibility assessment is an assessment of whether the relevant person meets the eligibility requirement.

47

(1) Regulations may—

(a) require an eligibility assessor to request a best interests assessor to provide relevant eligibility information, and

(b) require the best interests assessor, if such a request is made, to provide such relevant eligibility information as he may have.

(2) In this paragraph—

“best interests assessor” means any person who is carrying out, or has carried out, a best interests assessment in relation to the relevant person;

“eligibility assessor” means a person carrying out an eligibility assessment in relation to the relevant person;

“relevant eligibility information” is information relevant to assessing whether or not the relevant person is ineligible by virtue of paragraph 5 of Schedule 1A.

No refusals assessment

48

A no refusals assessment is an assessment of whether the relevant person meets the no refusals requirement.

Equivalent assessment already carried out

49

(1) The supervisory body are not required by paragraph 33 to secure that a particular kind of assessment (“the required assessment”) is carried out in relation to the relevant person if the following conditions are met.

(2) The first condition is that the supervisory body have a written copy of an assessment of the relevant person (“the existing assessment”) that has already been carried out.

(3) The second condition is that the existing assessment complies with all requirements under this Schedule with which the required assessment would have to comply (if it were carried out).

(4) The third condition is that the existing assessment was carried out within the previous 12 months; but this condition need not be met if the required assessment is an age assessment.

(5) The fourth condition is that the supervisory body are satisfied that there is no reason why the existing assessment may no longer be accurate.

(6) If the required assessment is a best interests assessment, in satisfying themselves as mentioned in sub-paragraph (5), the supervisory body must take into account any information given, or submissions made, by—

(a) the relevant person's representative,

(b) any section 39C IMCA, or

(7) It does not matter whether the existing assessment was carried out in connection with a request for a standard authorisation or for some other purpose.

(8) If, because of this paragraph, the supervisory body are not required by paragraph 33 to secure that the required assessment is carried out, the existing assessment is to be treated for the purposes of this Schedule—

(a) as an assessment of the same kind as the required assessment, and

(b) as having been carried out under paragraph 33 in connection with the request for the standard authorisation.

Duty to give authorisation

50

(1) The supervisory body must give a standard authorisation if—

(a) all assessments are positive, and

(b) the supervisory body have written copies of all those assessments.

(2) The supervisory body must not give a standard authorisation except in accordance with sub-paragraph (1).

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Mental Capacity Act 2005

Joint attorneys

21

Joint and several attorneys

22

Part 8 — Interpretation

23

SCHEDULE 5

Part 1 — Repeal of Part 7 of the Mental Health Act 1983

Existing receivers

1

Orders, appointments etc.

2

Pending proceedings

3

Appeals

4

Fees

5

Court records

6

Existing charges

7

Preservation of interests on disposal of property

8

Accounts

9

Interpretation

10

Part 2 — Repeal of the Enduring Powers of Attorney Act 1985

Orders, determinations, etc.

11

Pending proceedings

12

Appeals

13

Exercise of powers of donor as trustee

14

Interpretation

15

SCHEDULE 6

Fines and Recoveries Act 1833 (c. 74)

1

Improvement of Land Act 1864 (c. 114)

2

Trustee Act 1925 (c. 19)

3

Law of Property Act 1925 (c. 20)

4

Administration of Estates Act 1925 (c. 23)

5

National Assistance Act 1948 (c. 29)

6

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

7

Intestates' Estates Act 1952 (c. 64)

8

Variation of Trusts Act 1958 (c. 53)

9

Administration of Justice Act 1960 (c. 65)

10

Industrial and Provident Societies Act 1965 (c. 12)

11

Compulsory Purchase Act 1965 (c. 56)

12

Leasehold Reform Act 1967 (c. 88)

13

Medicines Act 1968 (c. 67)

14

Family Law Reform Act 1969 (c. 46)

15

Local Authority Social Services Act 1970 (c. 42)

16

Courts Act 1971 (c. 23)

17

Local Government Act 1972 (c. 70)

18

Matrimonial Causes Act 1973 (c. 18)

19

Juries Act 1974 (c. 23)