39APerson becomes subject to Schedule A1

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.

39BSection 39A: supplementary provision

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.

39CPerson unrepresented whilst subject to Schedule A1

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.

39DPerson subject to Schedule A1 without paid representative

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

c

R is not being paid under regulations under Part 10 of Schedule A1 for acting as P's representative.

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;

c

that P and R are each unlikely to exercise a relevant right when it would be 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;

c

the duration 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—

  1. a

     the right to apply to court, and

  2. b

     the 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.

39ELimitation on duty to instruct advocate under section 39D

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.