Mental Health Act 2007 (c. 12)

(The document as of February, 2008)

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Page 12

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Best interests review assessment positive

115 (1) This paragraph applies in a case where--

(a) a best interests review assessment is carried out, and

(b) the assessment comes to a positive conclusion.

(2) The supervisory body must decide the following questions--

(a) whether or not the best interests requirement is reviewable on the change of reason ground;

(b) whether or not the best interests requirement is reviewable on the variation of conditions ground;

(3) If the supervisory body decide that the best interests requirement is reviewable on the change of reason ground, they must vary the standard authorisation so that it states the reason why the relevant person now meets that requirement.

(4) If the supervisory body decide that--

(a) the best interests requirement is reviewable on the variation of conditions ground, and

(b) the change in the relevant person's case is not significant,

they may vary the conditions to which the standard authorisation is subject in such ways (if any) as they think are appropriate in the circumstances.

(5) If the supervisory body decide that--

(a) the best interests requirement is reviewable on the variation of conditions ground, and

(b) the change in the relevant person's case is significant,

they must vary the conditions to which the standard authorisation is subject in such ways as they think are appropriate in the circumstances.

(6) If the supervisory body decide that the best interests requirement is not reviewable on--

(a) the change of reason ground, or

(b) the variation of conditions ground,

this Part does not require the supervisory body to take any action in respect of the standard authorisation so far as the best interests requirement relates to it.

Mental health, mental capacity, eligibility or no refusals review assessment positive

116 (1) This paragraph applies if the following conditions are met.

(2) The first condition is that one or more of the following are carried out--

(a) a mental health review assessment;

(b) a mental capacity review assessment;

(d) a no refusals review assessment.

(3) The second condition is that each assessment carried out comes to a positive conclusion.

(4) The supervisory body must decide whether or not each of the assessed qualifying requirements is reviewable on the change of reason ground.

(5) If the supervisory body decide that any of the assessed qualifying requirements is reviewable on the change of reason ground, they must vary the standard authorisation so that it states the reason why the relevant person now meets the requirement or requirements in question.

(6) If the supervisory body decide that none of the assessed qualifying requirements are reviewable on the change of reason ground, this Part does not require the supervisory body to take any action in respect of the standard authorisation so far as those requirements relate to it.

(7) An assessed qualifying requirement is a qualifying requirement in relation to which a review assessment is carried out.

One or more review assessments negative

117 (1) This paragraph applies if one or more of the review assessments carried out comes to a negative conclusion.

(2) The supervisory body must terminate the standard authorisation with immediate effect.

Completion of a review

118 (1) The review of the standard authorisation is complete in any of the following cases.

(2) The first case is where paragraph 110 applies.

(3) The second case is where--

(a) paragraph 111 applies, and

(b) paragraph 117 requires the supervisory body to terminate the standard authorisation.

(4) In such a case, the supervisory body need not comply with any of the other provisions of paragraphs 114 to 116 which would be applicable to the review (were it not for this sub-paragraph).

(5) The third case is where--

(a) paragraph 111 applies,

(b) paragraph 117 does not require the supervisory body to terminate the standard authorisation, and

(c) the supervisory body comply with all of the provisions of paragraphs 114 to 116 (so far as they are applicable to the review).

Variations under this Part

119 Any variation of the standard authorisation made under this Part must be in writing.

Notice of outcome of review

120 (1) When the review of the standard authorisation is complete, the supervisory body must give notice to all of the following--

(a) the managing authority of the relevant hospital or care home;

(b) the relevant person;

(d) any section 39D IMCA.

(2) That notice must state--

(a) the outcome of the review, and

(b) what variation (if any) has been made to the authorisation under this Part.

Records

121 A supervisory body must keep a written record of the following information--

(a) each request for a review that is made to them;

(b) the outcome of each request;

(d) the outcome of each review which they carry out;

(e) any variation of an authorisation made in consequence of a review.

Relationship between review and suspension under Part 6

122 (1) This paragraph applies if a standard authorisation is suspended in accordance with Part 6.

(2) No review may be requested under this Part whilst the standard authorisation is suspended.

(3) If a review has already been requested, or is being carried out, when the standard authorisation is suspended, no steps are to be taken in connection with that review whilst the authorisation is suspended.

Relationship between review and request for new authorisation

123 (1) This paragraph applies if, in accordance with paragraph 24 (as read with paragraph 29), the managing authority of the relevant hospital or care home make a request for a new standard authorisation which would be in force after the expiry of the existing authorisation.

(2) No review may be requested under this Part until the request for the new standard authorisation has been disposed of.

(3) If a review has already been requested, or is being carried out, when the new standard authorisation is requested, no steps are to be taken in connection with that review until the request for the new standard authorisation has been disposed of.

124 (1) This paragraph applies if--

(a) a review under this Part has been requested, or is being carried out, and

(b) the managing authority of the relevant hospital or care home make a request under paragraph 30 for a new standard authorisation which would be in force on or before, and after, the expiry of the existing authorisation.

(2) No steps are to be taken in connection with the review under this Part until the request for the new standard authorisation has been disposed of.

125 In paragraphs 123 and 124--

(a) the existing authorisation is the authorisation referred to in paragraph 101;

(b) the expiry of the existing authorisation is the time when it is expected to cease to be in force.

Part 9 Assessments under this Schedule

Introduction

126 This Part contains provision about assessments under this Schedule.

127 An assessment under this Schedule is either of the following--

(a) an assessment carried out in connection with a request for a standard authorisation under Part 4;

(b) a review assessment carried out in connection with a review of a standard authorisation under Part 8.

128 In this Part, in relation to an assessment under this Schedule--

"assessor" means the person carrying out the assessment;
"relevant procedure" means--
(a)
the request for the standard authorisation, or
(b)
the review of the standard authorisation;
"supervisory body" means the supervisory body responsible for securing that the assessment is carried out.

Supervisory body to select assessor

129 (1) It is for the supervisory body to select a person to carry out an assessment under this Schedule.

(2) The supervisory body must not select a person to carry out an assessment unless the person--

(a) appears to the supervisory body to be suitable to carry out the assessment (having regard, in particular, to the type of assessment and the person to be assessed), and

(b) is eligible to carry out the assessment.

(3) Regulations may make provision about the selection, and eligibility, of persons to carry out assessments under this Schedule.

(4) Sub-paragraphs (5) and (6) apply if two or more assessments are to be obtained for the purposes of the relevant procedure.

(5) In a case where the assessments to be obtained include a mental health assessment and a best interests assessment, the supervisory body must not select the same person to carry out both assessments.

(6) Except as prohibited by sub-paragraph (5), the supervisory body may select the same person to carry out any number of the assessments which the person appears to be suitable, and is eligible, to carry out.

130 (1) This paragraph applies to regulations under paragraph 129(3).

(2) The regulations may make provision relating to a person's--

(a) qualifications,

(b) skills,

(d) experience,

(e) relationship to, or connection with, the relevant person or any other person,

(f) involvement in the care or treatment of the relevant person,

(g) connection with the supervisory body, or

(h) connection with the relevant hospital or care home, or with any other establishment or undertaking.

(3) The provision that the regulations may make in relation to a person's training may provide for particular training to be specified by the appropriate authority otherwise than in the regulations.

(4) In sub-paragraph (3) the "appropriate authority" means--

(a) in relation to England: the Secretary of State;

(b) in relation to Wales: the National Assembly for Wales.

(5) The regulations may make provision requiring a person to be insured in respect of liabilities that may arise in connection with the carrying out of an assessment.

(6) In relation to cases where two or more assessments are to be obtained for the purposes of the relevant procedure, the regulations may limit the number, kind or combination of assessments which a particular person is eligible to carry out.

(7) Sub-paragraphs (2) to (6) do not limit the generality of the provision that may be made in the regulations.

Examination and copying of records

131 An assessor may, at all reasonable times, examine and take copies of--

(a) any health record,

(b) any record of, or held by, a local authority and compiled in accordance with a social services function, and

which the assessor considers may be relevant to the assessment which is being carried out.

Representations

132 In carrying out an assessment under this Schedule, the assessor must take into account any information given, or submissions made, by any of the following--

(a) the relevant person's representative;

(b) any section 39A IMCA;

(d) any section 39D IMCA.

Assessments to stop if any comes to negative conclusion

133 (1) This paragraph applies if an assessment under this Schedule comes to the conclusion that the relevant person does not meet one of the qualifying requirements.

(2) This Schedule does not require the supervisory body to secure that any other assessments under this Schedule are carried out in relation to the relevant procedure.

(3) The supervisory body must give notice to any assessor who is carrying out another assessment in connection with the relevant procedure that they are to cease carrying out that assessment.

(4) If an assessor receives such notice, this Schedule does not require the assessor to continue carrying out that assessment.

Duty to keep records and give copies

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;

(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;

(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.

Part 10 Relevant person's representative

The representative

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".

Supervisory body to appoint representative

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

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

Appointment regulations

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;

(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;

(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.

Monitoring of representatives

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.

Termination

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.

Suspension of representative's functions

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.

Payment of representative

151 Regulations may make provision for payments to be made to, or in relation to, persons exercising functions as the relevant person's representative.

Regulations under this Part

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.

Effect of appointment of section 39C IMCA

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.

Part 11 IMCAs

Application of Part

154 This Part applies for the purposes of this Schedule.

The IMCAs

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.

Section 39C IMCA: functions

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);

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.

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