Office of Public Sector Information
10.—(1) A supervisory body must not select a person to carry out an assessment if the person is—
(a) a relative of the relevant person(21); or
(b) a relative of a person who is financially interested in the care of the relevant person.
(2) For the purposes of this regulation a “relative” means—
(a) a spouse, ex-spouse, civil partner or ex-civil partner;
(b) a person living with the relevant person as if they were a spouse or a civil partner;
(c) a parent or child;
(d) a brother or sister;
(e) a child of a person falling within sub-paragraphs (a), (b) or (d);
(f) a grandparent or grandchild;
(g) a grandparent-in-law or grandchild-in-law;
(h) an uncle or aunt;
(i) a brother-in-law or sister-in-law;
(j) a son-in-law or daughter-in-law;
(k) a first cousin; or
(l) a half-brother or half-sister.
(3) For the purposes of this regulation—
(a) the relationships in paragraph (2)(c) to (k) include step relationships;
(b) references to step relationships and in-laws in paragraph (2) are to be read in accordance with section 246 of the Civil Partnership Act 2004(22); and
(c) financial interest has the meaning given in regulation 11.
11.—(1) A supervisory body must not select a person to carry out an assessment where the person has a financial interest in the case.
(2) A person has a financial interest in a case where—
(a) that person is a partner, director, other office-holder or major shareholder of the managing authority that has made the application for a standard authorisation(23); and
(b) the managing authority is a care home(24) or independent hospital(25).
(3) A major shareholder means—
(a) any person holding one tenth or more of the issued shares in the managing authority, where the managing authority is a company limited by shares; and
(b) in all other cases, any of the owners of the managing authority.
12.—(1) A supervisory body must not select a person to carry out a best interests assessment if that person is involved in the care, or making decisions about the care, of the relevant person.
(2) Where the managing authority and supervisory body are both the same body, the supervisory body must not select a person to carry out a best interests assessment who is employed by it or who is providing services to it.
13.—(1) Except as provided in paragraph (2), all assessments required for a standard authorisation must be completed within the period of 21 days beginning with the date that the supervisory body receives a request for such an authorisation.
(2) Where a supervisory body receives a request for a standard authorisation and the managing authority has given an urgent authorisation under paragraph 76 of Schedule A1 to the Act, the assessments required for that standard authorisation must be completed within the period during which the urgent authorisation is in force.
14. Subject to paragraph 69(3) to (5) of Schedule A1 to the Act, an assessment required under that paragraph must be completed within the period of 7 days beginning with the date that the supervisory body receives the request from an eligible person.
15.—(1) This regulation applies where an individual is being assessed and the eligibility assessor and the best interests assessor are not the same person.
(2) The eligibility assessor must request that the best interests assessor provides any relevant eligibility information that the best interests assessor may have.
(3) The best interests assessor must comply with any request made under this regulation.
(4) In this regulation “eligibility assessor” means a person selected to carry out the eligibility assessment under paragraph 46 of Schedule A1 to the Act.
16.—(1) A request for a standard authorisation must include the following information—
(a) the name and gender of the relevant person;
(b) the age of the relevant person or, where this is not known, whether the managing authority believes that the relevant person is aged 18 years or older;
(c) the address and telephone number where the relevant person is currently located;
(d) the name, address and telephone number of the managing authority and the name of the person within the managing authority who is dealing with the request;
(e) the purpose for which the authorisation is requested;
(f) the date from which the standard authorisation is sought; and
(g) whether the managing authority has given an urgent authorisation under paragraph 76 of Schedule A1 to the Act and, if so, the date on which it expires.
(2) Except as provided for in paragraph (3), a request for a standard authorisation must include the following information if it is available or could reasonably be obtained by the managing authority—
(a) any medical information relating to the relevant person’s health that the managing authority considers to be relevant to the proposed restrictions to the relevant person’s liberty;
(b) the diagnosis of the mental disorder (within the meaning of the Mental Health Act 1983 but disregarding any exclusion for persons with learning disability)(26) that the relevant person is suffering from;
(c) any relevant care plans and relevant needs assessments;
(d) the racial, ethnic or national origins of the relevant person;
(e) whether the relevant person has any special communication needs;
(f) details of the proposed restrictions on the relevant person’s liberty;
(g) whether section 39A of the Act (person becomes subject to Schedule A1)(27) applies;
(h) where the purpose of the proposed restrictions to the relevant person’s liberty is to give treatment, whether the relevant person has made an advance decision that may be valid and applicable to some or all of that treatment;
(i) whether the relevant person is subject to—
(i) the hospital treatment regime,
(ii) the community treatment regime, or
(iii) the guardianship regime(28);
(j) the name, address and telephone number of—
(i) anyone named by the relevant person as someone to be consulted about his welfare,
(ii) anyone engaged in caring for the person or interested in his welfare,
(iii) any donee of a lasting power of attorney granted by the person,
(iv) any deputy appointed for the person by the court, and
(v) any independent mental capacity advocate appointed in accordance with sections 37 to 39D(29) of the Act; and
(k) whether there is an existing authorisation in relation to the detention of the relevant person and, if so, the date of the expiry of that authorisation.
(3) Where—
(a) there is an existing authorisation in force in relation to the detention of the relevant person; and
(b) the managing authority makes a request in accordance with paragraph 30 of Schedule A1 to the Act for a further standard authorisation in relation to the same relevant person,
the request need not include any of the information mentioned in paragraph (2)(a) to (j) if that information remains the same as that supplied in relation to the request for the existing authorisation.
(4) In this regulation “existing authorisation” has the same meaning as in paragraph 29 of Schedule A1 to the Act.
“relevant person” is defined in paragraph 7 of Schedule A1 to the Act. Back [21]
A standard authorisation is defined in paragraph 8 of Schedule A1 to the Act. Back [23]
“care home” is defined in paragraph 178 of Schedule A1 to the Act. Back [24]
“independent hospital” is defined in paragraph 175(3) of Schedule A1 to the Act. Back [25]
See paragraph 14 of Schedule A1 to the Act. Back [26]
Section 39A was inserted by section 50 of and Schedule 9 to the Mental Health Act 2007. Back [27]
The hospital treatment, community treatment and guardianship regimes are defined in paragraphs 8 to 10 of Part 2 of Schedule 1A to the Mental Capacity Act 2005. Schedule 1A was inserted by section 50 of and Schedule 8 to the Mental Health Act 2007. Back [28]
Sections 39B to 39D were inserted by section 50 of and Schedule 9 to the Mental Health Act 2007. Back [29]
The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008