Office of Public Sector Information
SCHEDULE 7 continued
134 (1) This paragraph applies if an assessor has carried out an assessment under this Schedule (whatever conclusions the assessment has come to).
(2) The assessor must keep a written record of the assessment.
(3) As soon as practicable after carrying out the assessment, the assessor must give copies of the assessment to the supervisory body.
135 (1) This paragraph applies to the supervisory body if they are given a copy of an assessment under this Schedule.
(2) The supervisory body must give copies of the assessment to all of the following—
(a) the managing authority of the relevant hospital or care home;
(b) the relevant person;
(c) any section 39A IMCA;
(d) the relevant person’s representative.
(3) If—
(a) the assessment is obtained in relation to a request for a standard authorisation, and
(b) the supervisory body are required by paragraph 50(1) to give the standard authorisation,
the supervisory body must give the copies of the assessment when they give copies of the authorisation in accordance with paragraph 57.
(4) If—
(a) the assessment is obtained in relation to a request for a standard authorisation, and
(b) the supervisory body are prohibited by paragraph 50(2) from giving the standard authorisation,
the supervisory body must give the copies of the assessment when they give notice in accordance with paragraph 58.
(5) If the assessment is obtained in connection with the review of a standard authorisation, the supervisory body must give the copies of the assessment when they give notice in accordance with paragraph 120.
136 (1) This paragraph applies to the supervisory body if—
(a) they are given a copy of a best interests assessment, and
(b) the assessment includes, in accordance with paragraph 44(2), a statement that it appears to the assessor that there is an unauthorised deprivation of liberty.
(2) The supervisory body must notify all of the persons listed in sub-paragraph (3) that the assessment includes such a statement.
(3) Those persons are—
(a) the managing authority of the relevant hospital or care home;
(b) the relevant person;
(c) any section 39A IMCA;
(d) any interested person consulted by the best interests assessor.
(4) The supervisory body must comply with this paragraph when (or at some time before) they comply with paragraph 135.
137 In this Schedule the relevant person’s representative is the person appointed as such in accordance with this Part.
138 (1) Regulations may make provision about the selection and appointment of representatives.
(2) In this Part such regulations are referred to as “appointment regulations”.
139 (1) The supervisory body must appoint a person to be the relevant person’s representative as soon as practicable after a standard authorisation is given.
(2) The supervisory body must appoint a person to be the relevant person’s representative if a vacancy arises whilst a standard authorisation is in force.
(3) Where a vacancy arises, the appointment under sub-paragraph (2) is to be made as soon as practicable after the supervisory body becomes aware of the vacancy.
140 (1) The selection of a person for appointment under paragraph 139 must not be made unless it appears to the person making the selection that the prospective representative would, if appointed—
(a) maintain contact with the relevant person,
(b) represent the relevant person in matters relating to or connected with this Schedule, and
(c) support the relevant person in matters relating to or connected with this Schedule.
141 (1) Any appointment of a representative for a relevant person is in addition to, and does not affect, any appointment of a donee or deputy.
(2) The functions of any representative are in addition to, and do not affect—
(a) the authority of any donee,
(b) the powers of any deputy, or
(c) any powers of the court.
142 Appointment regulations may provide that the procedure for appointing a representative may begin at any time after a request for a standard authorisation is made (including a time before the request has been disposed of).
143 (1) Appointment regulations may make provision about who is to select a person for appointment as a representative.
(2) But regulations under this paragraph may only provide for the following to make a selection—
(a) the relevant person, if he has capacity in relation to the question of which person should be his representative;
(b) a donee of a lasting power of attorney granted by the relevant person, if it is within the scope of his authority to select a person;
(c) a deputy, if it is within the scope of his authority to select a person;
(d) a best interests assessor;
(e) the supervisory body.
(3) Regulations under this paragraph may provide that a selection by the relevant person, a donee or a deputy is subject to approval by a best interests assessor or the supervisory body.
(4) Regulations under this paragraph may provide that, if more than one selection is necessary in connection with the appointment of a particular representative—
(a) the same person may make more than one selection;
(b) different persons may make different selections.
(5) For the purposes of this paragraph a best interests assessor is a person carrying out a best interests assessment in connection with the standard authorisation in question (including the giving of that authorisation).
144 (1) Appointment regulations may make provision about who may, or may not, be—
(a) selected for appointment as a representative, or
(b) appointed as a representative.
(2) Regulations under this paragraph may relate to any of the following matters—
(a) a person’s age;
(b) a person’s suitability;
(c) a person’s independence;
(d) a person’s willingness;
(e) a person’s qualifications.
145 Appointment regulations may make provision about the formalities of appointing a person as a representative.
146 In a case where a best interests assessor is to select a person to be appointed as a representative, appointment regulations may provide for the variation of the assessor’s duties in relation to the assessment which he is carrying out.
147 Regulations may make provision requiring the managing authority of the relevant hospital or care home to—
(a) monitor, and
(b) report to the supervisory body on,
the extent to which a representative is maintaining contact with the relevant person.
148 Regulations may make provision about the circumstances in which the appointment of a person as the relevant person’s representative ends or may be ended.
149 Regulations may make provision about the formalities of ending the appointment of a person as a representative.
150 (1) Regulations may make provision about the circumstances in which functions exercisable by, or in relation to, the relevant person’s representative (whether under this Schedule or not) may be—
(a) suspended, and
(b) if suspended, revived.
(2) The regulations may make provision about the formalities for giving effect to the suspension or revival of a function.
(3) The regulations may make provision about the effect of the suspension or revival of a function.
151 Regulations may make provision for payments to be made to, or in relation to, persons exercising functions as the relevant person’s representative.
152 The provisions of this Part which specify provision that may be made in regulations under this Part do not affect the generality of the power to make such regulations.
153 Paragraphs 159 and 160 make provision about the exercise of functions by, or towards, the relevant person’s representative during periods when—
(a) no person is appointed as the relevant person’s representative, but
(b) a person is appointed as a section 39C IMCA.
154 This Part applies for the purposes of this Schedule.
155 A section 39A IMCA is an independent mental capacity advocate appointed under section 39A.
156 A section 39C IMCA is an independent mental capacity advocate appointed under section 39C.
157 A section 39D IMCA is an independent mental capacity advocate appointed under section 39D.
158 An IMCA is a section 39A IMCA or a section 39C IMCA or a section 39D IMCA.
159 (1) This paragraph applies if, and for as long as, there is a section 39C IMCA.
(2) In the application of the relevant provisions, references to the relevant person’s representative are to be read as references to the section 39C IMCA.
(3) But sub-paragraph (2) does not apply to any function under the relevant provisions for as long as the function is suspended in accordance with provision made under Part 10.
(4) In this paragraph and paragraph 160 the relevant provisions are—
(a) paragraph 102(3)(b) (request for review under Part 8);
(b) paragraph 108(1)(b) (notice of review under Part 8);
(c) paragraph 120(1)(c) (notice of outcome of review under Part 8).
160 (1) This paragraph applies if—
(a) a person is appointed as the relevant person’s representative, and
(b) a person accordingly ceases to hold an appointment as a section 39C IMCA.
(2) Where a function under a relevant provision has been exercised by, or towards, the section 39C IMCA, there is no requirement for that function to be exercised again by, or towards, the relevant person’s representative.
161 (1) This paragraph applies if—
(a) there is a section 39A IMCA, and
(b) a person is appointed under Part 10 to be the relevant person’s representative (whether or not that person, or any person subsequently appointed, is currently the relevant person’s representative).
(2) The duties imposed on, and the powers exercisable by, the section 39A IMCA do not apply.
(3) The duties imposed on, and the powers exercisable by, any other person do not apply, so far as they fall to be performed or exercised towards the section 39A IMCA.
(4) But sub-paragraph (2) does not apply to any power of challenge exercisable by the section 39A IMCA.
(5) And sub-paragraph (3) does not apply to any duty or power of any other person so far as it relates to any power of challenge exercisable by the section 39A IMCA.
(6) Before exercising any power of challenge, the section 39A IMCA must take the views of the relevant person’s representative into account.
(7) A power of challenge is a power to make an application to the court to exercise its jurisdiction under section 21A in connection with the giving of the standard authorisation.
162 (1) Regulations may make provision for, and in connection with, requiring one or more prescribed bodies to monitor, and report on, the operation of this Schedule in relation to England.
(2) The regulations may, in particular, give a prescribed body authority to do one or more of the following things—
(a) to visit hospitals and care homes;
(b) to visit and interview persons accommodated in hospitals and care homes;
(c) to require the production of, and to inspect, records relating to the care or treatment of persons.
(3) “Prescribed” means prescribed in regulations under this paragraph.
163 (1) Regulations may make provision for, and in connection with, enabling the National Assembly for Wales to monitor, and report on, the operation of this Schedule in relation to Wales.
(2) The National Assembly may direct one or more persons or bodies to carry out the Assembly’s functions under regulations under this paragraph.
164 (1) Regulations may require either or both of the following to disclose prescribed information to prescribed bodies—
(a) supervisory bodies;
(b) managing authorities of hospitals or care homes.
(2) “Prescribed” means prescribed in regulations under this paragraph.
(3) Regulations under this paragraph may only prescribe information relating to matters with which this Schedule is concerned.
165 (1) The National Assembly for Wales may direct a Local Health Board to exercise in relation to its area any supervisory functions which are specified in the direction.
(2) Directions under this paragraph must not preclude the National Assembly from exercising the functions specified in the directions.
(3) In this paragraph “supervisory functions” means functions which the National Assembly have as supervisory body, so far as they are exercisable in relation to hospitals (whether NHS or independent hospitals, and whether in Wales or England).
166 (1) This paragraph applies where, under paragraph 165, a Local Health Board (“the specified LHB”) is directed to exercise supervisory functions (“delegated functions”).
(2) The National Assembly for Wales may give directions to the specified LHB about the Board’s exercise of delegated functions.
(3) The National Assembly may give directions for any delegated functions to be exercised, on behalf of the specified LHB, by a committee, sub-committee or officer of that Board.
(4) The National Assembly may give directions providing for any delegated functions to be exercised by the specified LHB jointly with one or more other Local Health Boards.
(5) Where, under sub-paragraph (4), delegated functions are exercisable jointly, the National Assembly may give directions providing for the functions to be exercised, on behalf of the Local Health Boards in question, by a joint committee or joint sub-committee.
167 (1) Directions under paragraph 165 must be given in regulations.
(2) Directions under paragraph 166 may be given—
(a) in regulations, or
(b) by instrument in writing.
168 The power under paragraph 165 or paragraph 166 to give directions includes power to vary or revoke directions given under that paragraph.
169 Any notice under this Schedule must be in writing.
170 (1) This paragraph applies to all regulations under this Schedule, except regulations under paragraph 162, 163, 167 or 183.
(2) It is for the Secretary of State to make such regulations in relation to authorisations under this Schedule which relate to hospitals and care homes situated in England.
(3) It is for the National Assembly for Wales to make such regulations in relation to authorisations under this Schedule which relate to hospitals and care homes situated in Wales.
171 It is for the Secretary of State to make regulations under paragraph 162.
172 It is for the National Assembly for Wales to make regulations under paragraph 163 or 167.
173 (1) This paragraph applies to regulations under paragraph 183.
(2) It is for the Secretary of State to make such regulations in relation to cases where a question as to the ordinary residence of a person is to be determined by the Secretary of State.
(3) It is for the National Assembly for Wales to make such regulations in relation to cases where a question as to the ordinary residence of a person is to be determined by the National Assembly.
174 This Part applies for the purposes of this Schedule.
175 (1) “Hospital” means—
(a) an NHS hospital, or
(b) an independent hospital.
(2) “NHS hospital” means—
(a) a health service hospital as defined by section 275 of the National Health Service Act 2006 or section 206 of the National Health Service (Wales) Act 2006, or
(b) a hospital as defined by section 206 of the National Health Service (Wales) Act 2006 vested in a Local Health Board.
(3) “Independent hospital” means a hospital as defined by section 2 of the Care Standards Act 2000 which is not an NHS hospital.
176 (1) “Managing authority”, in relation to an NHS hospital, means—
(a) if the hospital—
(i) is vested in the appropriate national authority for the purposes of its functions under the National Health Service Act 2006 or of the National Health Service (Wales) Act 2006, or
(ii) consists of any accommodation provided by a local authority and used as a hospital by or on behalf of the appropriate national authority under either of those Acts,
the Primary Care Trust, Strategic Health Authority, Local Health Board or Special Health Authority responsible for the administration of the hospital;
(b) if the hospital is vested in a Primary Care Trust, National Health Service trust or NHS foundation trust, that trust;
(c) if the hospital is vested in a Local Health Board, that Board.
(2) For this purpose the appropriate national authority is—
(a) in relation to England: the Secretary of State;
(b) in relation to Wales: the National Assembly for Wales;
(c) in relation to England and Wales: the Secretary of State and the National Assembly acting jointly.
177 “Managing authority”, in relation to an independent hospital, means the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the hospital.
178 “Care home” has the meaning given by section 3 of the Care Standards Act 2000.
179 “Managing authority”, in relation to a care home, means the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the care home.
180 (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant hospital is situated in England.
(2) If a Primary Care Trust commissions the relevant care or treatment, that Trust is the supervisory body.
(3) If the National Assembly for Wales or a Local Health Board commission the relevant care or treatment, the National Assembly are the supervisory body.
(4) In any other case, the supervisory body are the Primary Care Trust for the area in which the relevant hospital is situated.
(5) If a hospital is situated in the areas of two (or more) Primary Care Trusts, it is to be regarded for the purposes of sub-paragraph (4) as situated in whichever of the areas the greater (or greatest) part of the hospital is situated.
181 (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant hospital is situated in Wales.
(2) The National Assembly for Wales are the supervisory body.
(3) But if a Primary Care Trust commissions the relevant care or treatment, that Trust is the supervisory body.
182 (1) The identity of the supervisory body is determined under this paragraph in cases where the relevant care home is situated in England or in Wales.
(2) The supervisory body are the local authority for the area in which the relevant person is ordinarily resident.
(3) But if the relevant person is not ordinarily resident in the area of a local authority, the supervisory body are the local authority for the area in which the care home is situated.
(4) In relation to England “local authority” means—
(a) the council of a county;
(b) the council of a district for which there is no county council;
(c) the council of a London borough;
(d) the Common Council of the City of London;
(e) the Council of the Isles of Scilly.
(5) In relation to Wales “local authority” means the council of a county or county borough.
(6) If a care home is situated in the areas of two (or more) local authorities, it is to be regarded for the purposes of sub-paragraph (3) as situated in whichever of the areas the greater (or greatest) part of the care home is situated.
183 (1) Subsections (5) and (6) of section 24 of the National Assistance Act 1948 (deemed place of ordinary residence) apply to any determination of where a person is ordinarily resident for the purposes of paragraph 182 as those subsections apply to such a determination for the purposes specified in those subsections.
(2) In the application of section 24(6) of the 1948 Act by virtue of sub-paragraph (1), section 24(6) is to be read as if it referred to a hospital vested in a Local Health Board as well as to hospitals vested in the Secretary of State and the other bodies mentioned in section 24(6).
(3) Any question arising as to the ordinary residence of a person is to be determined by the Secretary of State or by the National Assembly for Wales.
(4) The Secretary of State and the National Assembly must make and publish arrangements for determining which cases are to be dealt with by the Secretary of State and which are to be dealt with by the National Assembly.
(5) Those arrangements may include provision for the Secretary of State and the National Assembly to agree, in relation to any question that has arisen, which of them is to deal with the case.
(6) Regulations may make provision about arrangements that are to have effect before, upon, or after the determination of any question as to the ordinary residence of a person.
(7) The regulations may, in particular, authorise or require a local authority to do any or all of the following things—
(a) to act as supervisory body even though it may wish to dispute that it is the supervisory body;
(b) to become the supervisory body in place of another local authority;
(c) to recover from another local authority expenditure incurred in exercising functions as the supervisory body.
184 (1) This paragraph applies if, in connection with a particular person’s detention as a resident in a hospital or care home, the same body are both—
(a) the managing authority of the relevant hospital or care home, and
(b) the supervisory body.
(2) The fact that a single body are acting in both capacities does not prevent the body from carrying out functions under this Schedule in each capacity.
(3) But, in such a case, this Schedule has effect subject to any modifications contained in regulations that may be made for this purpose.
185 Each of the following is an interested person—
(a) the relevant person’s spouse or civil partner;
(b) where the relevant person and another person of the opposite sex are not married to each other but are living together as husband and wife: the other person;
(c) where the relevant person and another person of the same sex are not civil partners of each other but are living together as if they were civil partners: the other person;
(d) the relevant person’s children and step-children;
(e) the relevant person’s parents and step-parents;
(f) the relevant person’s brothers and sisters, half-brothers and half-sisters, and stepbrothers and stepsisters;
(g) the relevant person’s grandparents;
(h) a deputy appointed for the relevant person by the court;
(i) a donee of a lasting power of attorney granted by the relevant person.
186 (1) An interested person consulted by the best interests assessor is any person whose name is stated in the relevant best interests assessment in accordance with paragraph 40 (interested persons whom the assessor consulted in carrying out the assessment).
(2) The relevant best interests assessment is the most recent best interests assessment carried out in connection with the standard authorisation in question (whether the assessment was carried out under Part 4 or Part 8).
187 Where this Schedule imposes on a person a duty towards an interested person, the duty does not apply if the person on whom the duty is imposed—
(a) is not aware of the interested person’s identity or of a way of contacting him, and
(b) cannot reasonably ascertain it.
188 The following table contains an index of provisions defining or otherwise explaining expressions used in this Schedule—
Amended by correction slip on 01 April 2008
Mental Health Act 2007