Office of Public Sector Information
PART 1 continued
(3) A person may not be appointed as a deputy without his consent.
(4) The court may appoint two or more deputies to act—
(a) jointly,
(b) jointly and severally, or
(c) jointly in respect of some matters and jointly and severally in respect of others.
(5) When appointing a deputy or deputies, the court may at the same time appoint one or more other persons to succeed the existing deputy or those deputies—
(a) in such circumstances, or on the happening of such events, as may be specified by the court;
(b) for such period as may be so specified.
(6) A deputy is to be treated as P’s agent in relation to anything done or decided by him within the scope of his appointment and in accordance with this Part.
(7) The deputy is entitled—
(a) to be reimbursed out of P’s property for his reasonable expenses in discharging his functions, and
(b) if the court so directs when appointing him, to remuneration out of P’s property for discharging them.
(8) The court may confer on a deputy powers to—
(a) take possession or control of all or any specified part of P’s property;
(b) exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.
(9) The court may require a deputy—
(a) to give to the Public Guardian such security as the court thinks fit for the due discharge of his functions, and
(b) to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.
(1) A deputy does not have power to make a decision on behalf of P in relation to a matter if he knows or has reasonable grounds for believing that P has capacity in relation to the matter.
(2) Nothing in section 16(5) or 17 permits a deputy to be given power—
(a) to prohibit a named person from having contact with P;
(b) to direct a person responsible for P’s health care to allow a different person to take over that responsibility.
(3) A deputy may not be given powers with respect to—
(a) the settlement of any of P’s property, whether for P’s benefit or for the benefit of others,
(b) the execution for P of a will, or
(c) the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise.
(4) A deputy may not be given power to make a decision on behalf of P which is inconsistent with a decision made, within the scope of his authority and in accordance with this Act, by the donee of a lasting power of attorney granted by P (or, if there is more than one donee, by any of them).
(5) A deputy may not refuse consent to the carrying out or continuation of life-sustaining treatment in relation to P.
(6) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1 (the principles) and 4 (best interests).
(7) A deputy may not do an act that is intended to restrain P unless four conditions are satisfied.
(8) The first condition is that, in doing the act, the deputy is acting within the scope of an authority expressly conferred on him by the court.
(9) The second is that P lacks, or the deputy reasonably believes that P lacks, capacity in relation to the matter in question.
(10) The third is that the deputy reasonably believes that it is necessary to do the act in order to prevent harm to P.
(11) The fourth is that the act is a proportionate response to—
(a) the likelihood of P’s suffering harm, or
(b) the seriousness of that harm.
(12) For the purposes of this section, a deputy restrains P if he—
(a) uses, or threatens to use, force to secure the doing of an act which P resists, or
(b) restricts P’s liberty of movement, whether or not P resists,
or if he authorises another person to do any of those things.
(13) But a deputy does more than merely restrain P if he deprives P of his liberty within the meaning of Article 5(1) of the Human Rights Convention (whether or not the deputy is a public authority).
The Lord Chancellor may by order make provision as to the transfer of proceedings relating to a person under 18, in such circumstances as are specified in the order—
(a) from the Court of Protection to a court having jurisdiction under the Children Act 1989 (c. 41), or
(b) from a court having jurisdiction under that Act to the Court of Protection.
(1) This section and section 23 apply if —
(a) a person (“P”) has executed or purported to execute an instrument with a view to creating a lasting power of attorney, or
(b) an instrument has been registered as a lasting power of attorney conferred by P.
(2) The court may determine any question relating to—
(a) whether one or more of the requirements for the creation of a lasting power of attorney have been met;
(b) whether the power has been revoked or has otherwise come to an end.
(3) Subsection (4) applies if the court is satisfied—
(a) that fraud or undue pressure was used to induce P—
(i) to execute an instrument for the purpose of creating a lasting power of attorney, or
(ii) to create a lasting power of attorney, or
(b) that the donee (or, if more than one, any of them) of a lasting power of attorney—
(i) has behaved, or is behaving, in a way that contravenes his authority or is not in P’s best interests, or
(ii) proposes to behave in a way that would contravene his authority or would not be in P’s best interests.
(4) The court may—
(a) direct that an instrument purporting to create the lasting power of attorney is not to be registered, or
(b) if P lacks capacity to do so, revoke the instrument or the lasting power of attorney.
(5) If there is more than one donee, the court may under subsection (4)(b) revoke the instrument or the lasting power of attorney so far as it relates to any of them.
(6) “Donee” includes an intended donee.
(1) The court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.
(2) The court may—
(a) give directions with respect to decisions—
(i) which the donee of a lasting power of attorney has authority to make, and
(ii) which P lacks capacity to make;
(b) give any consent or authorisation to act which the donee would have to obtain from P if P had capacity to give it.
(3) The court may, if P lacks capacity to do so—
(a) give directions to the donee with respect to the rendering by him of reports or accounts and the production of records kept by him for that purpose;
(b) require the donee to supply information or produce documents or things in his possession as donee;
(c) give directions with respect to the remuneration or expenses of the donee;
(d) relieve the donee wholly or partly from any liability which he has or may have incurred on account of a breach of his duties as donee.
(4) The court may authorise the making of gifts which are not within section 12(2) (permitted gifts).
(5) Where two or more donees are appointed under a lasting power of attorney, this section applies as if references to the donee were to all or any of them.
(1) “Advance decision” means a decision made by a person (“P”), after he has reached 18 and when he has capacity to do so, that if—
(a) at a later time and in such circumstances as he may specify, a specified treatment is proposed to be carried out or continued by a person providing health care for him, and
(b) at that time he lacks capacity to consent to the carrying out or continuation of the treatment,
the specified treatment is not to be carried out or continued.
(2) For the purposes of subsection (1)(a), a decision may be regarded as specifying a treatment or circumstances even though expressed in layman’s terms.
(3) P may withdraw or alter an advance decision at any time when he has capacity to do so.
(4) A withdrawal (including a partial withdrawal) need not be in writing.
(5) An alteration of an advance decision need not be in writing (unless section 25(5) applies in relation to the decision resulting from the alteration).
(1) An advance decision does not affect the liability which a person may incur for carrying out or continuing a treatment in relation to P unless the decision is at the material time—
(a) valid, and
(b) applicable to the treatment.
(2) An advance decision is not valid if P—
(a) has withdrawn the decision at a time when he had capacity to do so,
(b) has, under a lasting power of attorney created after the advance decision was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision relates, or
(c) has done anything else clearly inconsistent with the advance decision remaining his fixed decision.
(3) An advance decision is not applicable to the treatment in question if at the material time P has capacity to give or refuse consent to it.
(4) An advance decision is not applicable to the treatment in question if—
(a) that treatment is not the treatment specified in the advance decision,
(b) any circumstances specified in the advance decision are absent, or
(c) there are reasonable grounds for believing that circumstances exist which P did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated them.
(5) An advance decision is not applicable to life-sustaining treatment unless—
(a) the decision is verified by a statement by P to the effect that it is to apply to that treatment even if life is at risk, and
(b) the decision and statement comply with subsection (6).
(6) A decision or statement complies with this subsection only if—
(a) it is in writing,
(b) it is signed by P or by another person in P’s presence and by P’s direction,
(c) the signature is made or acknowledged by P in the presence of a witness, and
(d) the witness signs it, or acknowledges his signature, in P’s presence.
(7) The existence of any lasting power of attorney other than one of a description mentioned in subsection (2)(b) does not prevent the advance decision from being regarded as valid and applicable.
(1) If P has made an advance decision which is—
(a) valid, and
(b) applicable to a treatment,
the decision has effect as if he had made it, and had had capacity to make it, at the time when the question arises whether the treatment should be carried out or continued.
(2) A person does not incur liability for carrying out or continuing the treatment unless, at the time, he is satisfied that an advance decision exists which is valid and applicable to the treatment.
(3) A person does not incur liability for the consequences of withholding or withdrawing a treatment from P if, at the time, he reasonably believes that an advance decision exists which is valid and applicable to the treatment.
(4) The court may make a declaration as to whether an advance decision—
(a) exists;
(b) is valid;
(c) is applicable to a treatment.
(5) Nothing in an apparent advance decision stops a person—
(a) providing life-sustaining treatment, or
(b) doing any act he reasonably believes to be necessary to prevent a serious deterioration in P’s condition,
while a decision as respects any relevant issue is sought from the court.
(1) Nothing in this Act permits a decision on any of the following matters to be made on behalf of a person—
(a) consenting to marriage or a civil partnership,
(b) consenting to have sexual relations,
(c) consenting to a decree of divorce being granted on the basis of two years' separation,
(d) consenting to a dissolution order being made in relation to a civil partnership on the basis of two years' separation,
(e) consenting to a child’s being placed for adoption by an adoption agency,
(f) consenting to the making of an adoption order,
(g) discharging parental responsibilities in matters not relating to a child’s property,
(h) giving a consent under the Human Fertilisation and Embryology Act 1990 (c. 37).
(2) “Adoption order” means—
(a) an adoption order within the meaning of the Adoption and Children Act 2002 (c. 38) (including a future adoption order), and
(b) an order under section 84 of that Act (parental responsibility prior to adoption abroad).
(1) Nothing in this Act authorises anyone—
(a) to give a patient medical treatment for mental disorder, or
(b) to consent to a patient’s being given medical treatment for mental disorder,
if, at the time when it is proposed to treat the patient, his treatment is regulated by Part 4 of the Mental Health Act.
(2) “Medical treatment”, “mental disorder” and “patient” have the same meaning as in that Act.
(1) Nothing in this Act permits a decision on voting at an election for any public office, or at a referendum, to be made on behalf of a person.
(2) “Referendum” has the same meaning as in section 101 of the Political Parties, Elections and Referendums Act 2000 (c. 41).
(1) Intrusive research carried out on, or in relation to, a person who lacks capacity to consent to it is unlawful unless it is carried out—
(a) as part of a research project which is for the time being approved by the appropriate body for the purposes of this Act in accordance with section 31, and
(b) in accordance with sections 32 and 33.
(2) Research is intrusive if it is of a kind that would be unlawful if it was carried out—
(a) on or in relation to a person who had capacity to consent to it, but
(b) without his consent.
(3) A clinical trial which is subject to the provisions of clinical trials regulations is not to be treated as research for the purposes of this section.
(4) “Appropriate body”, in relation to a research project, means the person, committee or other body specified in regulations made by the appropriate authority as the appropriate body in relation to a project of the kind in question.
(5) “Clinical trials regulations” means—
(a) the Medicines for Human Use (Clinical Trials) Regulations 2004 (S.I. 2004/1031) and any other regulations replacing those regulations or amending them, and
(b) any other regulations relating to clinical trials and designated by the Secretary of State as clinical trials regulations for the purposes of this section.
(6) In this section, section 32 and section 34, “appropriate authority” means—
(a) in relation to the carrying out of research in England, the Secretary of State, and
(b) in relation to the carrying out of research in Wales, the National Assembly for Wales.
(1) The appropriate body may not approve a research project for the purposes of this Act unless satisfied that the following requirements will be met in relation to research carried out as part of the project on, or in relation to, a person who lacks capacity to consent to taking part in the project (“P”).
(2) The research must be connected with—
(a) an impairing condition affecting P, or
(b) its treatment.
(3) “Impairing condition” means a condition which is (or may be) attributable to, or which causes or contributes to (or may cause or contribute to), the impairment of, or disturbance in the functioning of, the mind or brain.
(4) There must be reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent to taking part in it.
(5) The research must—
(a) have the potential to benefit P without imposing on P a burden that is disproportionate to the potential benefit to P, or
(b) be intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition.
(6) If the research falls within paragraph (b) of subsection (5) but not within paragraph (a), there must be reasonable grounds for believing—
(a) that the risk to P from taking part in the project is likely to be negligible, and
(b) that anything done to, or in relation to, P will not—
(i) interfere with P’s freedom of action or privacy in a significant way, or
(ii) be unduly invasive or restrictive.
(7) There must be reasonable arrangements in place for ensuring that the requirements of sections 32 and 33 will be met.
(1) This section applies if a person (“R”)—
(a) is conducting an approved research project, and
(b) wishes to carry out research, as part of the project, on or in relation to a person (“P”) who lacks capacity to consent to taking part in the project.
(2) R must take reasonable steps to identify a person who—
(a) otherwise than in a professional capacity or for remuneration, is engaged in caring for P or is interested in P’s welfare, and
(b) is prepared to be consulted by R under this section.
(3) If R is unable to identify such a person he must, in accordance with guidance issued by the appropriate authority, nominate a person who—
(a) is prepared to be consulted by R under this section, but
(b) has no connection with the project.
(4) R must provide the person identified under subsection (2), or nominated under subsection (3), with information about the project and ask him—
(a) for advice as to whether P should take part in the project, and
(b) what, in his opinion, P’s wishes and feelings about taking part in the project would be likely to be if P had capacity in relation to the matter.
(5) If, at any time, the person consulted advises R that in his opinion P’s wishes and feelings would be likely to lead him to decline to take part in the project (or to wish to withdraw from it) if he had capacity in relation to the matter, R must ensure—
(a) if P is not already taking part in the project, that he does not take part in it;
(b) if P is taking part in the project, that he is withdrawn from it.
(6) But subsection (5)(b) does not require treatment that P has been receiving as part of the project to be discontinued if R has reasonable grounds for believing that there would be a significant risk to P’s health if it were discontinued.
(7) The fact that a person is the donee of a lasting power of attorney given by P, or is P’s deputy, does not prevent him from being the person consulted under this section.
(8) Subsection (9) applies if treatment is being, or is about to be, provided for P as a matter of urgency and R considers that, having regard to the nature of the research and of the particular circumstances of the case—
(a) it is also necessary to take action for the purposes of the research as a matter of urgency, but
(b) it is not reasonably practicable to consult under the previous provisions of this section.
(9) R may take the action if—
(a) he has the agreement of a registered medical practitioner who is not involved in the organisation or conduct of the research project, or
(b) where it is not reasonably practicable in the time available to obtain that agreement, he acts in accordance with a procedure approved by the appropriate body at the time when the research project was approved under section 31.
(10) But R may not continue to act in reliance on subsection (9) if he has reasonable grounds for believing that it is no longer necessary to take the action as a matter of urgency.
(1) This section applies in relation to a person who is taking part in an approved research project even though he lacks capacity to consent to taking part.
(2) Nothing may be done to, or in relation to, him in the course of the research—
(a) to which he appears to object (whether by showing signs of resistance or otherwise) except where what is being done is intended to protect him from harm or to reduce or prevent pain or discomfort, or
(b) which would be contrary to—
(i) an advance decision of his which has effect, or
(ii) any other form of statement made by him and not subsequently withdrawn,
of which R is aware.
(3) The interests of the person must be assumed to outweigh those of science and society.
(4) If he indicates (in any way) that he wishes to be withdrawn from the project he must be withdrawn without delay.
(5) P must be withdrawn from the project, without delay, if at any time the person conducting the research has reasonable grounds for believing that one or more of the requirements set out in section 31(2) to (7) is no longer met in relation to research being carried out on, or in relation to, P.
(6) But neither subsection (4) nor subsection (5) requires treatment that P has been receiving as part of the project to be discontinued if R has reasonable grounds for believing that there would be a significant risk to P’s health if it were discontinued.
(1) This section applies where a person (“P”)—
(a) has consented to take part in a research project begun before the commencement of section 30, but
(b) before the conclusion of the project, loses capacity to consent to continue to take part in it.
(2) The appropriate authority may by regulations provide that, despite P’s loss of capacity, research of a prescribed kind may be carried out on, or in relation to, P if—
(a) the project satisfies prescribed requirements,
(b) any information or material relating to P which is used in the research is of a prescribed description and was obtained before P’s loss of capacity, and
(c) the person conducting the project takes in relation to P such steps as may be prescribed for the purpose of protecting him.
(3) The regulations may, in particular,—
(a) make provision about when, for the purposes of the regulations, a project is to be treated as having begun;
(b) include provision similar to any made by section 31, 32 or 33.
(1) The appropriate authority must make such arrangements as it considers reasonable to enable persons (“independent mental capacity advocates”) to be available to represent and support persons to whom acts or decisions proposed under sections 37, 38 and 39 relate.
(2) The appropriate authority may make regulations as to the appointment of independent mental capacity advocates.
(3) The regulations may, in particular, provide—
(a) that a person may act as an independent mental capacity advocate only in such circumstances, or only subject to such conditions, as may be prescribed;
(b) for the appointment of a person as an independent mental capacity advocate to be subject to approval in accordance with the regulations.
(4) In making arrangements under subsection (1), the appropriate authority must have regard to the principle that a person to whom a proposed act or decision relates should, so far as practicable, be represented and supported by a person who is independent of any person who will be responsible for the act or decision.
(5) The arrangements may include provision for payments to be made to, or in relation to, persons carrying out functions in accordance with the arrangements.
(6) For the purpose of enabling him to carry out his functions, an independent mental capacity advocate—
(a) may interview in private the person whom he has been instructed to represent, and
(b) may, at all reasonable times, examine and take copies of—
(i) any health record,
(ii) any record of, or held by, a local authority and compiled in connection with a social services function, and
(iii) any record held by a person registered under Part 2 of the Care Standards Act 2000 (c. 14),
which the person holding the record considers may be relevant to the independent mental capacity advocate’s investigation.
(7) In this section, section 36 and section 37, “the appropriate authority” means—
(a) in relation to the provision of the services of independent mental capacity advocates in England, the Secretary of State, and
(b) in relation to the provision of the services of independent mental capacity advocates in Wales, the National Assembly for Wales.
(1) The appropriate authority may make regulations as to the functions of independent mental capacity advocates.
(2) The regulations may, in particular, make provision requiring an advocate to take such steps as may be prescribed for the purpose of—
(a) providing support to the person whom he has been instructed to represent (“P”) so that P may participate as fully as possible in any relevant decision;
(b) obtaining and evaluating relevant information;
(c) ascertaining what P’s wishes and feelings would be likely to be, and the beliefs and values that would be likely to influence P, if he had capacity;
(d) ascertaining what alternative courses of action are available in relation to P;
(e) obtaining a further medical opinion where treatment is proposed and the advocate thinks that one should be obtained.
(3) The regulations may also make provision as to circumstances in which the advocate may challenge, or provide assistance for the purpose of challenging, any relevant decision.
Mental Capacity Act 2005