Office of Public Sector Information
Section 50
Before Schedule 1 to the Mental Capacity Act 2005 (c. 9) insert—
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.
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).
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.
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.
5 This Part applies for the purposes of this Schedule.
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.
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.
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).
12 (1) These are the qualifying requirements referred to in this Schedule—
(a) the age requirement;
(b) the mental health requirement;
(c) the mental capacity 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.
13 The relevant person meets the age requirement if he has reached 18.
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.
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.
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.
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.
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;
(c) the advance decision is applicable to some or all of the relevant treatment.
(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.
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
(c) they are permitted to do so by paragraph 30.
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
(c) is likely—
(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
(c) is likely—
(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.
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.
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.
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.
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.
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).
31 A request for a standard authorisation must include the information (if any) required by regulations.
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.
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;
(c) a mental capacity 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.
34 An age assessment is an assessment of whether the relevant person meets the age requirement.
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.
37 A mental capacity assessment is an assessment of whether the relevant person meets the mental capacity requirement.
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;
(c) any relevant care plan.
(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).
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.
48 A no refusals assessment is an assessment of whether the relevant person meets the no refusals requirement.
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
(c) any section 39D IMCA.
Mental Health Act 2007