|
| |
|
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 |
| 5 |
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 |
| 10 |
| |
(c) | a deputy, if it is within the scope of his authority to select a |
| |
| |
(d) | a best interests assessor; |
| |
(e) | the supervisory body. |
| 15 |
(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 |
| 20 |
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 |
| 25 |
the standard authorisation in question (including the giving of |
| |
| |
144 (1) | Appointment regulations may make provision about who may, or |
| |
| |
(a) | selected for appointment as a representative, or |
| 30 |
(b) | appointed as a representative. |
| |
(2) | Regulations under this paragraph may relate to any of the |
| |
| |
| |
(b) | a person’s suitability; |
| 35 |
(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. |
| 40 |
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— |
| |
| |
(b) | report to the supervisory body on, |
| 5 |
| the extent to which a representative is maintaining contact with |
| |
| |
| |
148 | Regulations may make provision about the circumstances in |
| |
which the appointment of a person as the relevant person’s |
| 10 |
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 |
| 15 |
which functions exercisable by, or in relation to, the relevant |
| |
person’s representative (whether under this Schedule or not) may |
| |
| |
| |
(b) | if suspended, revived. |
| 20 |
(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 |
| 25 |
151 | Regulations may make provision for payments to be made to, or |
| |
in relation to, persons exercising functions as the relevant person’s |
| |
| |
Regulations under this Part |
| |
152 | The provisions of this Part which specify provision that may be |
| 30 |
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 158 and 159 make provision about the exercise of |
| |
functions by, or towards, the relevant person’s representative |
| 35 |
| |
(a) | no person is appointed as the relevant person’s |
| |
| |
(b) | a person is appointed as a section 39C IMCA. |
| |
|
| |
|
| |
|
| |
| |
| |
154 | This Part applies for the purposes of this Schedule. |
| |
| 5 |
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 | An IMCA is a section 39A IMCA or a section 39C IMCA. |
| 10 |
Section 39C IMCA: functions |
| |
158 (1) | This paragraph applies if, and for as long as, there is a section 39C |
| |
| |
(2) | In the application of the relevant provisions, references to the |
| |
relevant person’s representative are to be read as references to the |
| 15 |
| |
(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 159 the relevant provisions are— |
| 20 |
(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 |
| |
| |
159 (1) | This paragraph applies if— |
| 25 |
(a) | a person is appointed as the relevant person’s |
| |
| |
(b) | a person accordingly ceases to hold an appointment as a |
| |
| |
(2) | Where a function under a relevant provision has been exercised |
| 30 |
by, or towards, the section 39C IMCA, there is no requirement for |
| |
that function to be exercised again by, or towards, the relevant |
| |
| |
Section 39A IMCA: restriction of functions |
| |
160 (1) | This paragraph applies if— |
| 35 |
(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). |
| 40 |
|
| |
|
| |
|
(2) | The duties imposed on, and the powers exercisable by, the section |
| |
| |
(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. |
| 5 |
(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. |
| 10 |
(6) | Before exercising any power of challenge, the section 39A IMCA |
| |
must take the views of the relevant person’s representative into |
| |
| |
(7) | A power of challenge is a power to make an application to the |
| |
court to exercise its jurisdiction under section 21A in connection |
| 15 |
with the giving of the standard authorisation. |
| |
| |
| |
Monitoring of operation of Schedule |
| |
161 (1) | Regulations may make provision for, and in connection with, |
| 20 |
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; |
| 25 |
(b) | to visit and interview persons accommodated in hospitals |
| |
| |
(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 |
| 30 |
| |
162 (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 |
| 35 |
to carry out the Assembly’s functions under regulations under this |
| |
| |
Disclosure of information |
| |
163 (1) | Regulations may require either or both of the following to disclose |
| |
prescribed information to prescribed bodies— |
| 40 |
| |
(b) | managing authorities of hospitals or care homes. |
| |
|
| |
|
| |
|
(2) | “Prescribed” means prescribed in regulations under this |
| |
| |
(3) | Regulations under this paragraph may only prescribe information |
| |
relating to matters with which this Schedule is concerned. |
| |
Directions by National Assembly in relation to supervisory functions |
| 5 |
164 (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. |
| 10 |
(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). |
| |
165 (1) | This paragraph applies where, under paragraph 164, a Local |
| 15 |
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 |
| 20 |
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. |
| 25 |
(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- |
| |
| 30 |
166 (1) | Directions under paragraph 164 must be given in regulations. |
| |
(2) | Directions under paragraph 165 may be given— |
| |
| |
(b) | by instrument in writing. |
| |
167 | The power under paragraph 164 or paragraph 165 to give |
| 35 |
directions includes power to vary or revoke directions given |
| |
| |
| |
168 | Any notice under this Schedule must be in writing. |
| |
|
| |
|
| |
|
| |
169 (1) | This paragraph applies to all regulations under this Schedule, |
| |
except regulations under paragraph 161, 162, 166 or 182. |
| |
(2) | It is for the Secretary of State to make such regulations in relation |
| |
to authorisations under this Schedule which relate to hospitals |
| 5 |
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. |
| |
170 | It is for the Secretary of State to make regulations under paragraph |
| 10 |
| |
171 | It is for the National Assembly for Wales to make regulations |
| |
under paragraph 162 or 166. |
| |
172 (1) | This paragraph applies to regulations under paragraph 182. |
| |
(2) | It is for the Secretary of State to make such regulations in relation |
| 15 |
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. |
| 20 |
| |
| |
| |
173 | This Part applies for the purposes of this Schedule. |
| |
Hospitals and their managing authorities |
| 25 |
174 (1) | “Hospital” means— |
| |
| |
(b) | an independent hospital. |
| |
(2) | “NHS hospital” means— |
| |
(a) | a health service hospital as defined by section 275 of the |
| 30 |
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 |
| 35 |
the Care Standards Act 2000 which is not an NHS hospital. |
| |
175 (1) | “Managing authority”, in relation to an NHS hospital, means— |
| |
| |
(i) | is vested in the appropriate national authority for |
| |
the purposes of its functions under the National |
| 40 |
|
| |
|
| |
|
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 |
| 5 |
| |
| 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 |
| 10 |
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; |
| 15 |
(c) | in relation to England and Wales: the Secretary of State and |
| |
the National Assembly acting jointly. |
| |
176 | “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. |
| 20 |
Care homes and their managing authorities |
| |
177 | “Care home” has the meaning given by section 3 of the Care |
| |
| |
178 | “Managing authority”, in relation to a care home, means the |
| |
person registered, or required to be registered, under Part 2 of the |
| 25 |
Care Standards Act 2000 in respect of the care home. |
| |
Supervisory bodies: hospitals |
| |
179 (1) | The identity of the supervisory body is determined under this |
| |
paragraph in cases where the relevant hospital is situated in |
| |
| 30 |
(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. |
| 35 |
(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 |
| 40 |
of the hospital is situated. |
| |
180 (1) | The identity of the supervisory body is determined under this |
| |
paragraph in cases where the relevant hospital is situated in |
| |
| |
|
| |
|