PART 1PRINCIPLES

Principles

Principles: capacity

1.-(1) The principles in subsections (2) to (5) must be complied with where for any purpose of this Act a determination falls to be made of whether a person who is 16 or over lacks capacity in relation to a matter.

(2) The person is not to be treated as lacking that capacity unless it is established that the person lacks capacity in relation to the matter within the meaning given by section 3.

(3) Whether the person is, or is not, able to make a decision for himself or herself about the matter-

(a)is to be determined solely by reference to whether the person is or is not able to do the things mentioned in section 4(1)(a) to (d); and

(b)accordingly, is not to be determined merely on the basis of any condition that the person has, or any other characteristic of the person, which might lead others to make unjustified assumptions about his or her ability to make a decision.

(4) The person is not to be treated as unable to make a decision for himself or herself about the matter unless all practicable help and support to enable the person to make a decision about the matter have been given without success (see section 5).

(5) The person is not to be treated as unable to make a decision for himself or herself about the matter merely because the person makes an unwise decision.

(6) Nothing in subsections (1) to (5) removes any obligation that a person may be under in a particular situation to take steps to establish whether another person has capacity in relation to a matter.

Principle: best interests

2.-(1) The principle in subsection (2) applies where, under this Act-

(a)an act is done for or on behalf of a person who is 16 or over and lacks capacity in relation to whether the act should be done; or

(b)a decision is made for or on behalf of a person who is 16 or over and lacks capacity to make the decision.

(2) The act must be done, or the decision must be made, in the person's best interests (see section 7).

Establishing whether a person has capacity

Meaning of "lacks capacity"

3.-(1) For the purposes of this Act, a person who is 16 or over lacks capacity in relation to a matter if, at the material time, the person is unable to make a decision for himself or herself about the matter (within the meaning given by section 4) because of an impairment of, or a disturbance in the functioning of, the mind or brain.

(2) It does not matter-

(a)whether the impairment or disturbance is permanent or temporary;

(b)what the cause of the impairment or disturbance is.

(3) In particular, it does not matter whether the impairment or disturbance is caused by a disorder or disability or otherwise than by a disorder or disability.

Meaning of "unable to make a decision"

4.-(1) For the purposes of this Part a person is "unable to make a decision" for himself or herself about a matter if the person-

(a)is not able to understand the information relevant to the decision;

(b)is not able to retain that information for the time required to make the decision;

(c)is not able to appreciate the relevance of that information and to use and weigh that information as part of the process of making the decision; or

(d)is not able to communicate his or her decision (whether by talking, using sign language or any other means);

and references to enabling or helping a person to make a decision about a matter are to be read accordingly.

(2) In subsection (1) "the information relevant to the decision" includes information about the reasonably foreseeable consequences of-

(a)deciding one way or another; or

(b)failing to make the decision.

(3) For the purposes of subsection (1)(a) the person is not to be regarded as "not able to understand the information relevant to the decision" if the person is able to understand an appropriate explanation of the information.

(4) An appropriate explanation means an explanation of the information given to the person in a way appropriate to the person's circumstances (using simple language, visual aids or any other means).

Supporting person to make decision

5.-(1) A person is not to be regarded for the purposes of section 1(4) as having been given all practicable help and support to enable him or her to make a decision unless, in particular, the steps required by this section have been taken so far as practicable.

(2) Those steps are-

(a)the provision to the person, in a way appropriate to his or her circumstances, of all the information relevant to the decision (or, where it is more likely to help the person to make a decision, of an explanation of that information);

(b)ensuring that the matter in question is raised with the person-

(i)at a time or times likely to help the person to make a decision; and

(ii)in an environment likely to help the person to make a decision;

(c)ensuring that persons whose involvement is likely to help the person to make a decision are involved in helping and supporting the person.

(3) The information referred to in subsection (2)(a) includes information about the reasonably foreseeable consequences of-

(a)deciding one way or another; or

(b)failing to make the decision.

(4) For the purposes of providing the information or explanation mentioned in subsection (2)(a) in a way appropriate to the person's circumstances it may, in particular, be appropriate-

(a)to use simple language or visual aids; or

(b)to provide support for the purposes of communicating the information or explanation.

(5) The reference in subsection (2)(c) to persons whose involvement is likely to help the person to make a decision may, in particular, include a person who provides support to help the person communicate his or her decision.

(6) Nothing in this section is to be taken as in any way limiting the effect of section 1(4).

Compliance with section 1(2)

6.-(1) In proceedings under this Act or any other statutory provision, any question whether a person who is 16 or over lacks capacity in relation to a matter (within the meaning of this Act) is to be decided on the balance of probabilities.

(2) Subsection (3) applies where, other than in such proceedings, it falls to a person to determine for any purpose of this Act whether another person who is 16 or over ("P") lacks capacity in relation to a matter.

(3) If-

(a)the person making the determination has taken reasonable steps to establish whether P lacks capacity in relation to the matter,

(b)the person reasonably believes that P lacks capacity in relation to the matter, and

(c)the principles in section 1(3) to (5) and section 5 have been complied with,

for the purposes of section 1(2) the person is to be taken to have sufficiently "established" that P lacks capacity in relation to the matter.

(4) In this section "proceedings" includes proceedings before a tribunal and proceedings of any panel constituted under Schedule 1 or 3.

Establishing what is in a person's best interests

Best interests

7.-(1) This section applies where for any purpose of this Act it falls to a person to determine what would be in the best interests of another person who is 16 or over ("P").

(2) The person making the determination must not make it merely on the basis of-

(a)P's age or appearance; or

(b)any other characteristic of P's, including any condition that P has, which might lead others to make unjustified assumptions about what might be in P's best interests.

(3) That person-

(a)must consider all the relevant circumstances (that is, all the circumstances of which that person is aware which it is reasonable to regard as relevant); and

(b)must in particular take the following steps.

(4) That person must consider-

(a)whether it is likely that P will at some time have capacity in relation to the matter in question; and

(b)if it appears likely that P will, when that is likely to be.

(5) That person must, so far as practicable, encourage and help P to participate as fully as possible in the determination of what would be in P's best interests.

(6) That person must have special regard to (so far as they are reasonably ascertainable)-

(a)P's past and present wishes and feelings (and, in particular, any relevant written statement made by P when P had capacity);

(b)the beliefs and values that would be likely to influence P's decision if P had capacity; and

(c)the other factors that P would be likely to consider if able to do so.

(7) That person must-

(a)so far as it is practicable and appropriate to do so, consult the relevant people about what would be in P's best interests and in particular about the matters mentioned in subsection (6); and

(b)take into account the views of those people (so far as ascertained from that consultation or otherwise) about what would be in P's best interests and in particular about those matters.

For the definition of "the relevant people" see subsection (11).

(8) That person must, in relation to any act or decision that is being considered, have regard to whether the same purpose can be as effectively achieved in a way that is less restrictive of P's rights and freedom of action.

(9) That person must, in relation to any act that is being considered, have regard to whether failure to do the act is likely to result in harm to other persons with resulting harm to P.

(10) If the determination relates to life-sustaining treatment for P, the person making the determination must not, in considering whether the treatment is in the best interests of P, be motivated by a desire to bring about P's death.

(11) In subsection (7) "the relevant people" means-

(a)any person who at the time of the determination is P's nominated person (see section 69);

(b)if at the time of the determination there is an independent mental capacity advocate who is instructed under section 91 to represent and provide support to P, the independent mental capacity advocate;

(c)any other person named by P as someone to be consulted on the matter in question or on matters of that kind;

(d)anyone engaged in caring for P or interested in P's welfare;

(e)any attorney under a lasting power of attorney, or an enduring power of attorney, granted by P; and

(f)any deputy appointed for P by the court.

Compliance with section 2

8.-(1) This section applies where a person other than the court ("the relevant person")-

(a)does an act for or on behalf of another person who is 16 or over and lacks capacity in relation to whether the act should be done; or

(b)makes a decision for or on behalf of another person who is 16 or over and lacks capacity to make the decision.

(2) The relevant person is to be taken to have sufficiently complied with the principle in section 2(2) (act or decision must be in best interests) if that person-

(a)reasonably believes that the act or decision is in the other person's best interests; and

(b)in determining whether the act or decision is in the other person's best interests, has complied with section 7.

PART 2LACK OF CAPACITY: PROTECTION FROM LIABILITY, AND SAFEGUARDS

CHAPTER 1PROTECTION FROM LIABILITY, AND GENERAL SAFEGUARDS

Protection from liability for acts in best interests of person lacking capacity

9.-(1) This section applies where-

(a)a person ("P") is 16 or over;

(b)another person ("D") does an act in connection with the care, treatment or personal welfare of P;

(c)before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter;

(d)when doing the act, D reasonably believes-

(i)that P lacks capacity in relation to the matter; and

(ii)that it will be in P's best interests for the act to be done; and

(e)D would have been liable in relation to the act if P had had capacity in relation to the matter and D had done the act without P's consent.

(2) D does not incur any liability in relation to the act, apart from such liability, if any, as D would have incurred in relation to it even if P-

(a)had had capacity to consent in relation to the matter; and

(b)had consented to D's doing the act.

(3) But subsection (2) has effect subject to the additional safeguard provisions (each of which imposes a safeguard, additional to those in subsection (1)(c) and (d), and more than one of which may apply in a given case).

(4) The additional safeguard provisions are-

(a)section 12 (conditions for any act of restraint);

(b)sections 13 and 15 (formal assessment of capacity, and consultation of nominated person, required for serious interventions);

(c)sections 16 and 17 (second opinion required for certain treatment);

(d)sections 19, 20, 24, 26, 28 and 30 (authorisation required for serious treatment where there is objection from P's nominated person or compulsion, and for deprivations of liberty and certain other measures);

(e)section 35 (independent mental capacity advocate required for certain serious interventions).

(5) The principles in sections 1(3) to (5) and 5 (P not to be treated as lacking capacity on irrelevant grounds, or where practicable help and support not given) and section 7 (best interests) apply in particular for the purposes of determining whether a belief mentioned in subsection (1)(d) is reasonable.

(6) Where P is under 18, in subsection (1)(e) "without P's consent" is to be read as "without P's consent and without any consent that could be given by a parent or guardian of P".

General limitations on section 9

10.-(1) Section 9 does not exclude-

(a)civil liability for loss or damage resulting from a person's negligence in doing an act; or

(b)criminal liability resulting from such negligence.

(2) Section 9 does not apply in relation to an act which is, or is done in the course of, psychosurgery.

(3) Section 9 does not apply in relation to an act that conflicts with a decision concerning the care, treatment or personal welfare of a person ("P") which-

(a)is made in accordance with this Act by an attorney under a lasting power of attorney granted by P and is within the scope of the attorney's authority; or

(b)is made in accordance with this Act by a deputy appointed for P by the court and is within the scope of the deputy's authority.

(4) Nothing in subsection (3) prevents a person from-

(a)providing life-sustaining treatment, or

(b)doing an act which the person reasonably believes to be necessary to prevent a serious deterioration in P's condition,

while a decision as respects any relevant issue is sought from the court.

(5) The Department may by regulations amend subsection (2) so as to extend the descriptions of treatment to which section 9 does not apply.

Advance decisions: effect on section 9

11.-(1) Section 9(2) (protection from liability) does not apply if-

(a)the act mentioned in section 9(1) is the carrying out or continuation of treatment of P; and

(b)carrying out or continuing that treatment conflicts with an effective advance decision to refuse treatment which has been made by P.

(2) In this section "an effective advance decision to refuse treatment" means a decision which, under the common law relating to advance decisions, has the same effect as if at the material time P-

(a)refused consent to the treatment's being carried out or continued; and

(b)had capacity to refuse that consent.

(3) In subsection (2) "the material time" means the time when the question arises whether the treatment should be carried out or continued.

(4) Nothing in this section prevents a person from-

(a)providing life-sustaining treatment, or

(b)doing an act which the person reasonably believes to be necessary to prevent a serious deterioration in P's condition,

while a decision as respects any relevant issue is sought from the court.

Acts of restraint: condition that must be met

12.-(1) This section applies where the act mentioned in section 9(1) ("the relevant act") is-

(a)an act restraining P; or

(b)an act that consists of instructing or authorising another person to do an act restraining P.

(2) Section 9(2) (protection from liability) applies to the relevant act only if the restraint condition (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) is met in relation to the relevant act.

(3) The restraint condition is that at the time the relevant act is done, D reasonably believes-

(a)that failure to do the relevant act would create a risk of harm to P; and

(b)that the relevant act is a proportionate response to-

(i)the likelihood of harm to P; and

(ii)the seriousness of the harm concerned.

(4) In this section an "act restraining P" means an act which-

(a)is intended to restrict P's liberty of movement, whether or not P resists; or

(b)is a use of force or a threat to use force and is done with the intention of securing the doing of an act which P resists.

(5) This section does not apply to an act which in itself amounts to a deprivation of liberty (as to which see sections 24 and 25).

(6) Subsection (5) does not affect the application of this section to an act restraining P which is done while P is detained in circumstances amounting to a deprivation of liberty.

CHAPTER 2ADDITIONAL SAFEGUARDS FOR SERIOUS INTERVENTIONS

Formal capacity assessments etc

Formal assessment of capacity

13.-(1) This section applies where-

(a)section 9(1)(a) and (b) apply; and

(b)the act mentioned there is, or is part of, a serious intervention (see section 63).

(2) Where this section applies-

(a)the condition in section 9(1)(c) is to be regarded as met only if, before the act is done, a formal capacity assessment is carried out; and

(b)a belief by D, at the time the act is done, that P lacks capacity in relation to the matter in question is not to be regarded as a reasonable belief if no statement of incapacity has been made.

(3) The formal capacity assessment must have been carried out, and the statement of incapacity made, recently enough before the act is done for it to be reasonable in all the circumstances to rely on them.

(4) This section does not apply where the situation is an emergency (see section 65).

(5) See section 14 for the meaning of "formal capacity assessment" and "statement of incapacity".

Section 13: formal capacity assessments and statements of incapacity

14.-(1) This section supplements section 13.

(2) A "formal capacity assessment" means an assessment carried out by a suitably qualified person (who may be D if D is suitably qualified) of whether P lacks capacity in relation to the matter in question.

(3) A "statement of incapacity" means a statement in writing, by the person who carried out the formal capacity assessment ("the assessor")-

(a)recording the fact that the assessment was carried out, by whom it was carried out and when;

(b)certifying that, in the opinion of the assessor, P lacks capacity within the meaning of this Act in relation to the matter in question;

(c)specifying which of the things mentioned in section 4(1)(a) to (d) P is, in the assessor's opinion, not able to do in relation to that matter because of an impairment of, or a disturbance in the functioning of, P's mind or brain; and

(d)specifying any help or support that has been given to P, without success, to enable P to make a decision in relation to the matter.

(4) In this section references to a "suitably qualified" person are to a person of a prescribed description.

Nominated persons

Nominated person: need to have in place and consult

15.-(1) This section applies where the act mentioned in section 9(1) is, or is part of, a serious intervention (see section 63).

(2) Section 9(2) (protection from liability) applies to the act only if the nominated person conditions (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) are met in relation to the act.

(3) The nominated person conditions are that-

(a)a nominated person is in place for P when D determines whether the act would be in P's best interests; and

(b)in making that determination, D consults and takes into account the views of the nominated person to the extent required by section 7(7) (duty to consult where practicable and appropriate and to take views into account).

(4) This section does not apply where the situation is an emergency (see section 65).

(5) For the purposes of this section a nominated person "is in place for P" at a particular time if at that time there is someone who is P's nominated person (see section 69).

CHAPTER 3ADDITIONAL SAFEGUARD: SECOND OPINION

Second opinion needed for certain treatment

16.-(1) This section applies where the act mentioned in section 9(1) is, or is done in the course of, the provision to P of any of the following treatment-

(a)electro-convulsive therapy;

(b)any treatment with serious consequences which is also treatment of a description specified for the purposes of this paragraph by regulations;

(c)any treatment with serious consequences where, at the time of the act-

(i)the question whether it is in P's best interests to have the treatment is finely balanced; and

(ii)the circumstances are such as may be prescribed.

(2) Section 9(2) (protection from liability) applies to the act only if, at the time the act is done, a second opinion has been obtained (and the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part, are met in relation to the act).

(3) The second opinion must have been obtained recently enough before the act is done for it to be reasonable in all the circumstances to rely on it.

(4) This section does not apply where the situation is an emergency (see section 65).

(5) In this section a "second opinion" means a relevant certificate (as defined by section 18) in respect of the treatment mentioned in subsection (1).

(6) For the purposes of subsection (1)(c)(i) it does not matter whether the choice is between-

(a)the treatment in question and no treatment; or

(b)the treatment in question and another treatment.

(7) For the meaning of "treatment with serious consequences" see section 21.

Second opinion needed for continuation of medication

17.-(1) This section applies where-

(a)the act mentioned in section 9(1) is, or is done in the course of, the provision to P of treatment which is medication for any condition;

(b)the medication is treatment with serious consequences and is of a description specified for the purposes of this paragraph by regulations;

(c)medication for that condition has been provided to P, on more than an occasional basis, for at least the relevant period; and

(d)at the time of the act P is, and for at least the relevant period has been, a qualifying person (see subsection (5)).

(2) Section 9(2) (protection from liability) applies to the act only if, at the time the act is done, a second opinion has been obtained (and the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part, are met in relation to the act).

(3) The second opinion must have been obtained-

(a)recently enough for it to be reasonable in all the circumstances to rely on it; and

(b)in any event, since the beginning of the relevant period.

(4) This section does not apply where the situation is an emergency (see section 65).

(5) For the purposes of this section-

(a)a person is a "qualifying person" at any time when he or she-

(i)is an in-patient or resident in a hospital, care home or place of a prescribed description; or

(ii)is subject to a requirement to attend at a particular place and particular times or intervals for the purpose of being given treatment for the condition;

(b)"the relevant period" is the period of 3 months ending immediately before the day on which the act is done;

(c)"second opinion" means a relevant certificate (as defined by section 18) in respect of the treatment mentioned in subsection (1)(a).

(6) The Department may by regulations amend subsection (5)(b) so as to alter the period mentioned there.

Second opinion: relevant certificates

18.-(1) In this Chapter "relevant certificate" means a statement in writing which-

(a)is made by an appropriate medical practitioner; and

(b)certifies that, in that practitioner's opinion, it is in P's best interests to have the treatment.

(2) An appropriate medical practitioner may, for the purposes of exercising any function under subsection (1), at any reasonable time-

(a)visit P and examine him or her in private;

(b)require the production of and examine any health records relating to P that are relevant.

(3) A medical practitioner may give a relevant certificate only if the medical practitioner has-

(a)examined P;

(b)examined any health records relating to P that have been produced under subsection (2)(b) and appear to the practitioner to be relevant (having taken reasonable steps to require the production of relevant health records); and

(c)consulted such person or persons as appear to the practitioner to be principally concerned with treating P (generally).

(4) A medical practitioner who gives a relevant certificate must immediately send a copy of it to RQIA.

(5) For the purposes of this section "an appropriate medical practitioner" means a medical practitioner who-

(a)is unconnected with P (see section 304);

(b)is approved for the purposes of this section by RQIA; and

(c)has been asked by RQIA, following a relevant request, to provide an opinion on whether it would be in P's best interests to have the treatment.

(6) Where RQIA receives a relevant request and proposes to ask a medical practitioner to provide an opinion on whether it would be in P's best interests to have the treatment, it must (when considering who to ask) have regard to the desirability of asking a medical practitioner who is independent of any medical practitioner concerned with the provision to P of the treatment.

(7) In this section a "relevant request" means a request, made by a person for the purposes of section 16 or 17, for RQIA to arrange for a medical practitioner to provide such an opinion.

CHAPTER 4ADDITIONAL SAFEGUARD: AUTHORISATIONS ETC

Treatment with serious consequences

Treatment with serious consequences: objection from nominated person

19.-(1) This section applies where-

(a)the act mentioned in section 9(1) is, or is done in the course of, the provision to P of treatment which is treatment with serious consequences (see section 21); and

(b)the treatment is carried out despite a reasonable objection from P's nominated person.

(2) Section 9(2) (protection from liability) applies to the act only if-

(a)the provision of the treatment to P is authorised; and

(b)the prevention of serious harm condition (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) is met.

(3) Subsection (2)(a) does not apply where the situation is an emergency (see section 65).

(4) For the purposes of subsection (2)(a) the provision of the treatment to P is "authorised" if, at the time the act is done, there is in force an authorisation granted under Schedule 1 which authorises the provision of the treatment to P.

(5) See section 22 for the prevention of serious harm condition.

Treatment with serious consequences: resistance by P etc

20.-(1) This section applies where-

(a)the act mentioned in section 9(1) is, or is done in the course of, the provision to P of treatment which is treatment with serious consequences (see section 21);

(b)section 19 (objection from nominated person) does not apply;

(c)the act-

(i)is resisted by P (see section 68); or

(ii)is done while P is subject to an additional measure (see section 23); and

(d)the circumstances are such as may be prescribed.

(2) Section 9(2) (protection from liability) applies to the act only if-

(a)the provision of the treatment to P is authorised; and

(b)the prevention of serious harm condition (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) is met.

(3) Subsection (2)(a) does not apply where the situation is an emergency (see section 65).

(4) For the purposes of subsection (2)(a) the provision of the treatment to P is "authorised" if, at the time the act is done, there is in force an authorisation granted under Schedule 1 which authorises the provision of the treatment to P.

(5) See section 22 for the prevention of serious harm condition.

Meaning of "treatment with serious consequences"

21.-(1) In this Part "treatment with serious consequences" means treatment which-

(a)causes the person to whom it is given serious pain, serious distress, or serious side-effects;

(b)is major surgery;

(c)affects seriously the options that will be available to that person in the future, or has a serious impact on his or her day-to-day life; or

(d)in any other way has serious consequences for that person, whether physical or non-physical.

(2) Regulations may provide that treatment of a specified description-

(a)is to be regarded as treatment falling within a particular paragraph of subsection (1); or

(b)is not to be regarded as such treatment.

(3) If-

(a)the act mentioned in section 9(1) is, or is done in the course of, the provision to P of treatment which turns out to be treatment with serious consequences, but

(b)at the time when the act is done D reasonably believes that the risk that the treatment will turn out to be treatment with such consequences is negligible,

the act is to be treated for the purposes of this Part as if the treatment were not treatment with serious consequences.

Sections 19 and 20: the prevention of serious harm condition

22.-(1) For the purposes of sections 19 and 20, the prevention of serious harm condition is that at the time the act mentioned in subsection (1)(a) of that section is done, D reasonably believes-

(a)that failure to provide the treatment in question to P would create a risk of serious harm to P or of serious physical harm to other persons; and

(b)that carrying out that treatment is a proportionate response to-

(i)the likelihood of harm to P, or of physical harm to other persons; and

(ii)the seriousness of the harm concerned.

(2)Subsection (3) applies where there are one or more treatments (other than the treatment mentioned in subsection (1))-

(a)that are available and would be appropriate in P's case; and

(b)the provision of which would not involve the doing of acts to which section 19 or 20 applies.

(3) In determining whether failure to provide the treatment mentioned in subsection (1) would create a risk of serious harm to P or of serious physical harm to other persons, it must be assumed that if that treatment were not provided, another treatment would be provided as soon as practicable.

Meaning of "subject to an additional measure"

23.-(1) For the purposes of this Part a person is "subject to an additional measure" at the time a particular act is done if-

(a)the act is done at a time when the person is detained by virtue of this Act in circumstances amounting to a deprivation of liberty;

(b)the act is, or is done in the course of, the provision of treatment and is done at a time when the person is subject to a requirement to attend at a particular place at particular times or intervals for the purpose of being given that treatment;

(c)the act is done at a time when the person is subject to a community residence requirement; or

(d)the act is done at a time when a supervision and assessment order (see Schedule 7) is in force in respect of the person.

(2) For further provision about the measures mentioned in subsection (1)(a) to (c), see sections 24 to 34.

Deprivation of liberty

Deprivation of liberty

24.-(1) This section applies where the act mentioned in section 9(1) amounts to, or is one of a number of acts that together amount to, a deprivation of P's liberty.

(2) Section 9(2) (protection from liability) applies to the act only if-

(a)the deprivation of P's liberty consists of-

(i)the detention of P, in circumstances amounting to a deprivation of liberty, in a place in which care or treatment is available for P; or

(ii)related detention;

(b)the detention in question is authorised; and

(c)the prevention of serious harm condition (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) is met.

(3) Subsection (2)(b) does not apply where the situation is an emergency (see section 65).

(4) See section 25 for-

(a)the meaning of "related detention" and of detention being "authorised";

(b)the prevention of serious harm condition.

(5) In this Part any reference to an act which is one of a number of acts that together amount to a deprivation of P's liberty includes (in particular) where P is detained in circumstances amounting to a deprivation of liberty, instructing another person to carry out or continue the detention.

Section 24: definitions

25.-(1) This section applies for the purposes of section 24.

(2) "Related detention" means-

(a)the detention of P in circumstances amounting to a deprivation of liberty while P is being taken to a place in which care or treatment is available for P; or

(b)the detention of P in circumstances amounting to a deprivation of liberty in pursuance of a condition imposed on P that relates to permission given to P to be absent from a relevant place (as defined by section 27).

(3) Detention is "authorised" if, at the time the act is done, there is in force an authorisation granted-

(a)by a panel under Schedule 1, or

(b)by the making of a report under paragraph 2 of Schedule 2 (authorisation of short-term detention for examination etc),

which authorises that detention.

(4) See paragraph 22 of Schedule 1 or paragraph 18 of Schedule 2 (as the case may be) for provisions about the scope of an authorisation.

(5) The prevention of serious harm condition is that at the time the act is done D reasonably believes-

(a)that failure to detain P in circumstances amounting to a deprivation of liberty would create a risk of serious harm to P or of serious physical harm to other persons; and

(b)that the detention in question is a proportionate response to-

(i)the likelihood of harm to P, or of physical harm to other persons; and

(ii)the seriousness of the harm concerned.

(6) References in this section to "the act" are to the act mentioned in section 24(1).

Taking person to a place for deprivation of liberty

26.-(1) This section applies where-

(a)the act mentioned in section 9(1) is, or is done in the course of, taking P to a place; and

(b)although taking P to that place does not itself involve a deprivation of liberty, it is done in order that P can be detained in circumstances amounting to a deprivation of liberty at that place.

(2) Section 9(2) (protection from liability) applies to the act only if-

(a)the detention that is to be carried out is authorised; and

(b)the prevention of serious harm condition (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) is met.

(3) Subsection (2)(a) does not apply where the situation is an emergency (see section 65).

(4) In this section "authorised" and "the prevention of serious harm condition" have the same meaning as in section 25(3) and (5), but for this purpose references there to "the act" are to be read as the act mentioned in subsection (1)(a) of this section.

Permission for absence

27.-(1) For the avoidance of doubt, if-

(a)by virtue of this Part a person ("P") is detained in a relevant place,

(b)P is given permission to be absent from the relevant place for a particular period or a particular occasion, and

(c)a person does an act within subsection (2),

section 9(2) (protection from liability) applies to that act provided that the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part, are met in relation to that act.

(2) The acts within this subsection are-

(a)imposing any condition on P in relation to the permission;

(b)any act for the purpose of ensuring that P complies with such a condition;

(c)recalling P to the relevant place.

(3) For the purposes of this section a place is a "relevant place" if-

(a)P is detained in the place in circumstances amounting to a deprivation of liberty; and

(b)care or treatment is available to P in the place.

Requirements to attend for treatment with serious consequences

Requirements to attend for certain treatment

28.-(1) This section applies where the act mentioned in section 9(1) is-

(a)the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment that would or might be treatment with serious consequences (an "attendance requirement"); or

(b)an act done for the purpose of ensuring that P complies with an attendance requirement.

(2) Section 9(2) (protection from liability) applies to the act only if-

(a)the requirement is authorised; and

(b)the receipt of treatment condition (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) is met.

(3) Subsection (2)(a) does not apply where the situation is an emergency (see section 65).

(4) For the purposes of subsection (2)(a) the requirement is "authorised" if, at the time the act is done, there is in force an authorisation granted under Schedule 1 which permits that requirement to be imposed.

(5) The receipt of treatment condition is that at the time the act is done D reasonably believes that-

(a)failure to impose the requirement, or

(b)where the requirement is already imposed, failure to ensure that P complies with the requirement,

would be more likely than not to result in P's not receiving the treatment.

Duty to revoke requirement where criteria no longer met

29.-(1) If-

(a)an attendance requirement has been authorised under Schedule 1 and has been imposed on a person, and

(b)at any time after the imposition of the requirement, the medical practitioner in charge of the treatment considers that any of the conditions in subsection (2) is no longer met,

the requirement must be revoked.

(2) Those conditions are-

(a)that the person lacks capacity in relation to whether he or she should attend at the place and times or intervals concerned for the purpose of being given the treatment;

(b)that it is more likely than not that, without the attendance requirement, the person would not receive the treatment;

(c)that the attendance requirement is in the person's best interests.

(3) Nothing in subsection (1) limits the effect of section 28 (under which acts to ensure compliance with an attendance requirement are unlawful if certain conditions are not met).

(4) Where an attendance requirement is revoked in the circumstances mentioned in subsection (1)(b), another attendance requirement may not be imposed on the person by virtue of the same authorisation.

(5) In this section "attendance requirement" has the same meaning as in section 28.

Community residence requirements

Community residence requirements: authorisation etc

30.-(1) This section applies where the act mentioned in section 9(1) is-

(a)the imposition on P of a community residence requirement (see section 31); or

(b)an act done for the purpose of ensuring that P complies with a community residence requirement.

(2) Section 9(2) (protection from liability) applies to the act only if-

(a)the community residence requirement is authorised; and

(b)the prevention of harm condition (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) is met.

(3) For the purposes of subsection (2)(a) the community residence requirement is "authorised" if, at the time the act is done, there is in force an authorisation granted under Schedule 1 which permits that community residence requirement to be imposed.

(4) The prevention of harm condition is that at the time the act is done D reasonably believes-

(a)that failure to do the act would create a risk of harm to P; and

(b)that the act is a proportionate response to-

(i)the likelihood of harm to P; and

(ii)the seriousness of the harm concerned.

Meaning of "community residence requirement"

31.-(1) In this Part a "community residence requirement", in relation to a person ("P"), means a requirement imposed on P by an HSC trust for P to live at a particular place, whether or not the requirement also contains provision imposing one or more of the requirements mentioned in subsection (2).

(2) Those requirements are-

(a)a requirement for P to allow a healthcare professional access to P at a place where P is living;

(b)a requirement (or requirements) for P to attend at particular places and times or intervals for the purpose of training, education, occupation or treatment.

(3) In subsection (2)(a) "healthcare professional" means a person of a prescribed description.

(4) In subsection (2)(b) "treatment" does not include treatment that would or might be treatment with serious consequences (requirements to attend for which are dealt with by section 28).

(5) References in this Part to an act done for the purpose of ensuring that P complies with a community residence requirement are to an act done-

(a)for the purpose of ensuring that P moves to, continues to live at or resumes living at the place required by the community residence requirement; or

(b)for the purpose of ensuring that P complies with a provision of the community residence requirement that requires P to attend a place or allow a person access to P.

Duty to revoke community residence requirement where criteria no longer met

32.-(1) If-

(a)a community residence requirement which is permitted by an authorisation under Schedule 1 to be imposed on a person has been imposed, and

(b)at any time after the imposition of the requirement, the approved social worker in charge of the person's case considers that any of the conditions in subsection (2) is no longer met,

the requirement must be revoked.

(2) Those conditions are-

(a)that the person lacks capacity in relation to the matters covered by the community residence requirement;

(b)that revoking the community residence requirement would create a risk of harm to the person;

(c)that keeping the requirement in place is a proportionate response to-

(i)the likelihood of harm to the person if the requirement were revoked; and

(ii)the seriousness of the harm concerned;

(d)that the community residence requirement is in the person's best interests.

(3) Subsection (1) is without prejudice to section 30 (under which acts to ensure compliance with a community residence requirement are unlawful if criteria are not met).

(4) Where a community residence requirement is revoked in the circumstances mentioned in subsection (1)(b), another community residence requirement may not be imposed on the person by virtue of the same authorisation.

Duties in relation to people subject to community residence requirements

33.  The Department may make regulations-

(a)for imposing on HSC trusts such duties as the Department considers appropriate in the interests of people who are subject to community residence requirements;

(b)requiring people subject to community residence requirements to be visited on prescribed occasions or at prescribed intervals.

Community residence requirements: further provision

34.-(1) For the avoidance of doubt, the imposition by an HSC trust of a community residence requirement is not to be regarded for the purposes of this Act-

(a)as an act which in itself amounts to a deprivation of liberty; or

(b)as an act within section 12(4) (acts of restraint).

(2) Subsection (3) applies if-

(a)a person is detained in a place in circumstances which-

(i)amount to a deprivation of liberty; and

(ii)include a requirement for the person to live in the place; and

(b)the detention of the person in the place in circumstances amounting to a deprivation of liberty is authorised under Schedule 1.

(3) Where this subsection applies, the requirement for the person to live in the place is not to be regarded for the purposes of section 30 or any other provision of this Act as a community residence requirement.

CHAPTER 5ADDITIONAL SAFEGUARD: INDEPENDENT MENTAL CAPACITY ADVOCATE

Independent mental capacity advocate: need to have in place and consult

35.-(1) This section applies where the act mentioned in section 9(1) is a relevant act (as defined by section 36).

(2) Section 9(2) (protection from liability) applies to the act only if the independent mental capacity advocate conditions (as well as the conditions of section 9(1)(c) and (d), and any other conditions that apply under this Part) are met.

(3) The independent mental capacity advocate conditions are that-

(a)at the time when D determines whether the act would be in P's best interests, there is an independent mental capacity advocate who is instructed under section 91 to represent and provide support to P; and

(b)in determining whether the act would be in P's best interests, D consults and takes into account the views of the independent mental capacity advocate to the extent required by section 7(7) (duty to consult where practicable and appropriate and to take views into account).

(4) This section does not apply if-

(a)the situation is an emergency; or

(b)at the time when D determines whether the act would be in P's best interests, P has made a declaration under section 90 or 93 (declarations declining services of an independent mental capacity advocate) in relation to the matter in question (and has not revoked the declaration).

Section 35: relevant acts

36.-(1) In section 35 "relevant act" means any of the following-

(a)an act which amounts to a deprivation of P's liberty, or one of a number of acts that together amount to such a deprivation;

(b)the imposition on P of a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment that would or might be treatment with serious consequences;

(c)the imposition on P of a community residence requirement;

(d)the provision of serious compulsory treatment;

(e)a serious compulsory intervention not falling within paragraphs (a) to (d).

(2) For the purposes of subsection (1)(d) an act is "the provision of serious compulsory treatment" if-

(a)it is, or is done in the course of, the provision to P of treatment with serious consequences; and

(b)the treatment is carried out despite a reasonable objection from P's nominated person or subsection (4) applies.

(3) For the purposes of subsection (1)(e) an act is a "serious compulsory intervention" if-

(a)it is, or is part of, a serious intervention; and

(b)the intervention is carried out despite a reasonable objection from P's nominated person or subsection (4) applies.

(4) This subsection applies if-

(a)the act-

(i)is resisted by P (see section 68); or

(ii)is done while P is subject to an additional measure (see section 23); and

(b)the circumstances are such as may be prescribed.

CHAPTER 6EXTENSION OF PERIOD OF CERTAIN AUTHORISATIONS

Extensions of period of authorisation

First extension of period of authorisation

37.-(1) This section applies where-

(a)an authorisation has been granted (and has not been revoked); and

(b)the initial period of the authorisation has not ended.

(2) The period of the authorisation may be extended for a period of 6 months beginning immediately after the end of the initial period, by the making of an extension report (see section 39).

(3) In this Chapter-

"authorisation" means an authorisation under paragraph 15 of Schedule 1;

"the initial period" of an authorisation means the period of 6 months beginning with the date the authorisation is granted (see paragraph 15(6) of Schedule 1);

"the period" of an authorisation means the period at the end of which the authorisation (unless previously revoked) expires.

Subsequent extensions

38.-(1) This section applies where-

(a)an authorisation has been granted (and has not been revoked);

(b)the period of the authorisation has been extended for a period ("the current extension period") under a relevant provision; and

(c)the current extension period has not ended.

(2) The period of the authorisation may be further extended, for a period of one year beginning immediately after the end of the current extension period, by the making of an extension report (see section 39).

(3) In subsection (1)(b) "relevant provision" means-

(a)section 37 (first extension);

(b)this section (subsequent extensions); or

(c)paragraph 8(2) of Schedule 3 (extension where responsible person is not of the opinion that the criteria for continuation are met).

Sections 37 and 38: extension reports

39.-(1) This section applies for the purposes of this Chapter.

(2) An "extension report", in relation to an authorisation in respect of a person ("P"), is a report in the prescribed form which-

(a)is made, within the reporting period, by an appropriate medical practitioner who has examined P within the reporting period and made the report as soon as practicable after that examination;

(b)specifies the authorised measure (or, if more than one, each authorised measure) that is proposed to be continued after the end of the current period;

(c)states that in the appropriate medical practitioner's opinion the criteria for continuation (see section 41) are met in respect of each specified measure;

(d)includes a statement in the prescribed form, by the responsible person (see section 42), that in that person's opinion the criteria for continuation are met in respect of each specified measure; and

(e)includes any prescribed information.

(3) If-

(a)the report specifies a measure within section 41(2)(b) or (d) (deprivation of liberty or community residence requirement), and

(b)the appropriate medical practitioner is of the opinion that P lacks (or probably lacks) capacity in relation to whether an application under section 45 (applications to Tribunal) should be made in respect of the authorisation,

the report must contain a statement of that opinion.

(4) In this section-

"appropriate medical practitioner" means a medical practitioner who is unconnected with P and is permitted by regulations under section 300 to make the report;

"authorised measure" and "measure" have the meaning given by section 41;

"the current period" means-

"the reporting period" means-

Extension of period where responsible person not of the requisite opinion

40.  Schedule3 makes provision for cases where it is proposed to make an extension under section 37 or 38 but the responsible person is not of the opinion that the criteria for continuation are met.

Supplementary provisions about extension

Meaning of "measure", "authorised measure" and "the criteria for continuation"

41.-(1) In this Chapter, in relation to an authorisation-

"authorised measure" means a measure which is authorised by the authorisation and has begun; and

"measure" is to be read in accordance with subsection (2).

(2) Each of the following is a "measure" for the purposes of this Chapter-

(a)the provision to P of particular treatment specified by the authorisation;

(b)the detention of P in circumstances amounting to a deprivation of liberty in a place specified by the authorisation, for purposes so specified;

(c)a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment specified by the authorisation;

(d)a community residence requirement.

(3) In this Chapter "the criteria for continuation", in relation to a measure, means the criteria for authorisation for that measure as set out in Part 3 of Schedule 1.

(4) In paragraphs 11(a) and 12(a) and (b) of that Schedule as they apply for the purposes of this section, the references to imposing a requirement include continuing the requirement.

Meaning of "the responsible person"

42.-(1) In this Chapter "the responsible person" means a person prescribed by regulations.

(2) Regulations under this section may in particular provide that-

(a)in prescribed circumstances the responsible person is the approved social worker in charge of P's case;

(b)in prescribed circumstances, the responsible person is a person of a prescribed description who is designated by the managing authority of a hospital or care home in which P is an in-patient or resident as a person who may make statements under this Chapter;

(c)in prescribed circumstances, the responsible person is a person of a prescribed description who is designated by an appropriate person (as defined by the regulations) as a person who may make statements under this Chapter.

Extension reports: further provision

43.-(1) This section contains further provision about extension reports.

(2) For the purposes of section 39 an extension report is made when the completed report is signed by the medical practitioner making it.

(3) See also sections 54 and 55 (involvement of nominated person and independent mental capacity advocate).

(4) A medical practitioner who makes an extension report must give it to the relevant trust as soon as practicable.

(5) Where an extension report is given to the relevant trust, that trust must as soon as practicable-

(a)give prescribed information to P and any prescribed person; and

(b)give RQIA a copy of the report.

(6) Regulations under subsection (5) must ensure that the Attorney General is given notice in any case where the report contains the statement mentioned in section 39(3) (statement that P lacks, or probably lacks, capacity in relation to making of Tribunal application).

(7) In this section "the relevant trust" means-

(a)where the extension made by the report is wholly or partly for the purposes of continuing P's detention in a place, the HSC trust in whose area that place is situated;

(b)where the extension made by the report is wholly or partly for the purposes of continuing the provision to P of treatment specified by the authorisation or a requirement to attend for such treatment, and paragraph (a) does not apply, the HSC trust in whose area the treatment is provided;

(c)where the extension made by the report is for the purposes of continuing a community residence requirement and paragraph (b) does not apply, the HSC trust in whose area the place where P is required by the community residence requirement to live is situated.

Effect of extension on authorisation where authorised measure unused etc

44.-(1) This section applies where-

(a)an authorisation has been granted;

(b)the period of the authorisation is extended under section 37 or 38; and

(c)when the extension report is made, there is a measure authorised by the authorisation which is not specified by the report as a measure that is proposed to be continued after the end of the current period (as defined by section 39).

(2) From the time immediately after the end of the current period, the provision of the authorisation which authorises that measure is to be treated as cancelled.

(3) See section 41 for the meaning of "measure".

CHAPTER 7RIGHTS OF REVIEW OF AUTHORISATION

Applications to the Tribunal

Right to apply to Tribunal

45.-(1) Where an event mentioned in the first column of the following table occurs, a qualifying person may apply to the Tribunal within the period mentioned in the corresponding entry of the second column of the table.

(2) In this section "a qualifying person" means-

(a)the person to whom the authorisation relates ("P"); or

(b)subject to subsection (3), a person who is P's nominated person.

(3) If P has capacity in relation to whether an application under this section should be made, P's nominated person may make an application only with P's consent.

(4) No application under this section may be made in respect of an authorisation that-

(a)has ceased to be effective by virtue of section 29(4) or 32(4) or paragraph 23 of Schedule 1 (effect on authorisation of discharge from detention etc); or

(b)for any other reason is no longer in force.

Applications: visiting and examination

46.-(1) A medical practitioner who is authorised-

(a)by or on behalf of a person ("P") to whom an authorisation under Schedule 1 or 2 relates, or

(b)by P's nominated person,

may, for a purpose mentioned in subsection (2), do anything within section 275 (visiting etc powers) in relation to P.

(2) The purposes are-

(a)the purpose of advising whether an application to the Tribunal under section 45 should be made by or in respect of P;

(b)the purpose of providing information as to the condition of P for the purposes of an application.

References to the Tribunal

Power of certain persons to refer case to Tribunal

47.-(1) At any time when an authorisation under Schedule 1 or 2 is in force, a person within subsection (2) may refer to the Tribunal the question whether the authorisation is appropriate.

(2) The persons are-

(a)the Attorney General;

(b)the Department;

(c)the Master (Care and Protection), acting on the direction of the court.

(3) For the purpose of providing information for the purposes of a reference under this section, any medical practitioner authorised by or on behalf of the person to whom the authorisation relates may do anything within section 275 (visiting etc powers) in relation to the person.

Duty of HSC trust to refer case to Tribunal

48.-(1) Where-

(a)on any date ("the extension date"), the period of an authorisation under Schedule 1 is extended under section 38 or Schedule 3,

(b)the authorisation has been in force throughout the relevant period (see subsection (2)), and

(c)the Tribunal has not considered the person's case at any time in that period,

the relevant trust must as soon as practicable refer the person's case to the Tribunal.

(2) The "relevant period" is-

(a)if the person to whom the authorisation relates ("the person") is under 18, the period of one year ending with the extension date;

(b)otherwise, the period of two years ending with the extension date.

(3) For the purpose of providing information for the purposes of a reference under this section, any medical practitioner authorised by or on behalf of the person may do anything within section 275 (visiting etc powers) in relation to the person.

(4) In this section-

"the person's case" means the question whether the authorisation is appropriate;

"the relevant trust" means-

(5) The Department may by regulations amend subsection (2) so as to alter any period mentioned there.

References etc to Tribunal: persons formerly detained under the Mental Health Order

49.-(1) This section applies where-

(a)immediately before the day a person reaches the age of 16 ("the relevant day"), the person is liable to be detained under Part 2 of the Mental Health Order; and

(b)on that day, there is in force an authorisation under Schedule 1 to this Act ("the authorisation") that authorises the detention of the person in circumstances amounting to a deprivation of liberty.

(2) If an application to the Tribunal by the person, or a reference of the person's case to the Tribunal, was made under Part 5 of the Mental Health Order before the relevant day but has not been dealt with by that day, the matters to be considered by the Tribunal include the question whether the authorisation is appropriate.

(3) If-

(a)on any date when the person is under 17, the period of the authorisation is extended (under section 37 or 38 or Schedule 3),

(b)a relevant authority has been in force throughout the period of one year ending with that date, and

(c)the Tribunal has not considered the person's case at any time in that period,

the relevant trust must as soon as practicable refer to the Tribunal the question whether the authorisation is appropriate.

(4) In this section-

"the person's case"-

"relevant authority"-

"the relevant trust" has the same meaning as in section 48.

Duty of HSC trust to notify the Attorney General

50.-(1) This section applies if-

(a)the period of an authorisation under Schedule 1 has been extended (under section 38 or Schedule 3) for a period of one year;

(b)the authorisation authorises a measure within section 41(2)(b) or (d) (deprivation of liberty or community residence requirement); and

(c)at the relevant time, it appears to the relevant trust that the person to whom the authorisation relates lacks (or probably lacks) capacity in relation to whether an application under section 45 (applications to Tribunal) should be made.

(2) The relevant trust must as soon as practicable give the Attorney General-

(a)notice of the matters mentioned in subsection (1)(a) to (c); and

(b)any prescribed information.

(3) In this section-

"the relevant time" means the time 6 months after the beginning of the one year period mentioned in subsection (1)(a);

"the relevant trust" has the same meaning as in section 48.

Powers of the Tribunal

Powers of Tribunal in relation to authorisation under Schedule 1

51.-(1) Where an application or reference to the Tribunal is made under this Chapter in relation to an authorisation under Schedule 1, the Tribunal must do one of the following-

(a)revoke the authorisation;

(b)if the authorisation authorises more than one measure (as defined by subsection (4)), vary the authorisation by cancelling any provision of it which authorises a measure;

(c)decide to take no action in respect of the authorisation.

(2) In the case of an authorisation under paragraph 15 of Schedule 1, the Tribunal-

(a)may vary the authorisation only if satisfied that the criteria for authorisation are met in respect of each measure that will remain authorised by the authorisation;

(b)may decide as mentioned in subsection (1)(c) only if satisfied that the criteria for authorisation are met in respect of each measure that is authorised by the authorisation.

(3) In the case of an interim authorisation under paragraph 20 of Schedule 1, the Tribunal-

(a)may vary the authorisation only if satisfied that there is a good prospect of it being established that the criteria for authorisation are met in respect of each measure that will remain authorised by the authorisation;

(b)may decide as mentioned in subsection (1)(c) only if satisfied that there is a good prospect of it being established that the criteria for authorisation are met in respect of each measure that is authorised by the authorisation.

(4) For the purposes of this section each of the following is a "measure"-

(a)the provision to P of treatment specified by the authorisation;

(b)the detention of P in a place in circumstances amounting to a deprivation of liberty;

(c)a requirement to attend at a particular place at particular times or intervals for the purpose of being given treatment specified by the authorisation;

(d)a community residence requirement.

(5) In this section "the criteria for authorisation", in relation to a measure, means the criteria for authorisation for that measure as set out in Part 3 of Schedule 1.

(6) In paragraphs 11(a) and 12(a) and (b) of that Schedule as they apply for the purposes of this section, the references to imposing a requirement include continuing the requirement.

Powers of Tribunal in relation to authorisation under Schedule 2

52.-(1) Where an application or reference to the Tribunal is made under this Chapter in relation to an authorisation under Schedule 2, the Tribunal must either-

(a)revoke the authorisation; or

(b)decide to take no action in respect of the authorisation.

(2) The Tribunal may decide as mentioned in subsection (1)(b) only if it is satisfied that the condition in paragraph 12 of Schedule 2 is met.

Sections 51 and 52: additional powers of Tribunal

53.-(1) This section applies where, under section 51 or 52, the Tribunal decides to do anything other than revoke the authorisation.

(2) The Tribunal may, with a view to facilitating the ending at a future date of a measure still authorised by the authorisation-

(a)recommend the taking of specified actions in relation to P; and

(b)further consider P's case in the event of any recommendation not being complied with.

(3) Where the Tribunal further considers P's case under subsection (2)(b), section 51 or (as the case may be) section 52 applies.

CHAPTER 8SUPPLEMENTARY

Medical reports: involvement of nominated person and independent mental capacity advocate

Medical reports: involvement of nominated person

54.-(1) A relevant medical report may be made only if-

(a)a nominated person is in place for P at the time when the person making the report determines for the purposes of the report what would be in P's best interests; and

(b)in making that determination, the person making the report consults and takes into account the views of the nominated person to the extent required by section 7(7) (duty to consult where practicable and appropriate and to take views into account).

(2) Subsection (1)-

(a)does not apply where the situation is an emergency for the purposes of this section (see section 56); and

(b)is without prejudice to section 55 (need to involve independent mental capacity advocate).

(3) For the purposes of this section a nominated person is "in place for P" at a particular time if at that time there is someone who is P's nominated person (see section 69).

(4) In this section "a relevant medical report" means-

(a)a report under section 39;

(b)a medical report under paragraph 7 of Schedule 1;

(c)a medical report under paragraph 4, 11, 13 or 14 of Schedule 2; or

(d)a medical report under paragraph 5 of Schedule 3.

Medical reports: involvement of independent mental capacty advocate

55.-(1) A relevant medical report may be made only if-

(a)at the time when the person making the report determines for the purposes of the report what would be in P's best interests, there is an independent mental capacity advocate who is instructed under section 91 to represent and provide support to P; and

(b)in determining what would be in P's best interests, the person making the report consults and takes into account the views of the independent mental capacity advocate to the extent required by section 7(7) (duty to consult where practicable and appropriate and to take views into account).

(2) Subsection (1)-

(a)does not apply where the situation is an emergency for the purposes of this section (see section 56); and

(b)is without prejudice to section 54 (need to involve nominated person).

(3) Subsection (1) does not apply if, at the time mentioned in subsection (1)(a), P has made a declaration under section 90 or 93 (declarations declining services of an independent mental capacity advocate) in relation to the matter in question (and has not revoked the declaration).

(4) In this section "a relevant medical report" has the same meaning as in section 54.

Sections 54 and 55: meaning of "emergency"

56.-(1) For the purposes of section 54 or 55 the situation is an "emergency" if, at the time when the person making the report determines what would be in P's best interests, that person-

(a)knows that the safeguard in that section is not met, but reasonably believes that to delay the report until that safeguard is met would involve an unacceptable risk of harm to P; or

(b)does not know whether the safeguard is met, but reasonably believes that to delay the report even until it is established whether the safeguard is met would involve an unacceptable risk of harm to P.

(2) For the purposes of this section-

(a)the safeguard in section 54 is met when a nominated person is in place for P (within the meaning given by that section);

(b)the safeguard in section 55 is met when-

(i)an independent mental capacity advocate is instructed under section 91 to represent and provide support to P in the determination of what would be in P's best interests; or

(ii)P has made (and not revoked) a declaration under section 90 or 93 in relation to the matter.

(3) For the purposes of this section the risk of harm to P involved in delaying the report until a particular safeguard is met, or until it is established whether it is met, is an "unacceptable" risk if-

(a)the seriousness of the harm that could be caused to P by such delay, and

(b)the likelihood of the harm,

are such as to outweigh the risk of harm to P of making the report without that safeguard being met.

(4) In deciding for the purposes of this section when a safeguard would be met, or when it would be established whether a safeguard is met, it must be assumed that any necessary steps would be taken as soon as practicable.

Provision of information

Provision of information

57.-(1) Regulations may make provision requiring a prescribed person to give prescribed information to prescribed persons-

(a)where, after an authorisation has been granted under Schedule 1 or 2, a prescribed event occurs;

(b)in such other circumstances where an act has been done in pursuance of this Part as may be prescribed.

(2) The regulations may include provision as to when the information must be given.

(3) The information that may be prescribed by-

(a)regulations made under this section, or

(b)regulations made under any other provision of this Part which requires prescribed information to be given to a person,

includes a copy of a prescribed document.

(4) Regulations under this section must in particular include provision for the purposes of ensuring-

(a)that where a person is detained by virtue of this Part in circumstances amounting to a deprivation of liberty, the person is made aware as soon as practicable of-

(i)the provisions of this Part by virtue of which he or she is detained, and the effect of those provisions; and

(ii)what rights are available under Chapter 7 (review by the Tribunal);

(b)that where a person who has been detained under this Part in circumstances amounting to a deprivation of liberty is discharged from detention, the person is informed in writing that he or she is discharged from detention.

Ways in which information must be provided

58.-(1) Regulations may make provision about the way in which relevant information must be given to prescribed persons.

(2) In this section "relevant information" means information which is-

(a)required to be given by any provision of this Part or of regulations made under this Part; and

(b)specified by the regulations under this section.

(3) Regulations under this section may in particular require information to be given orally as well as in writing.

Other supplementary provision

Failure by person other than D to take certain steps

59.-(1) This section applies if, in relation to an act done by a person ("D")-

(a)all the conditions for section 9 to apply are met, except that supportive steps that it would have been practicable to take were not taken;

(b)the fact that those steps were not taken is not to any extent due to an unreasonable failure by D to take such steps; and

(c)at the time of the act, it is no longer practicable for such steps to be taken.

(2) For the purposes of determining whether D is liable in relation to the act, section 9 is to be taken to apply to the act.

(3) But if-

(a)D is an employee of a person ("E"), and

(b)any other employee of E unreasonably failed to take supportive steps in relation to the matter at a time when it would have been practicable to take such steps,

for the purposes of determining whether E is liable in relation to the act subsection (2) is to be disregarded.

(4) In this section "supportive steps" means steps to help or support the person to whom the act relates ("P") to enable P to make a decision for himself or herself about the matter.

(5) For the purposes of this section a failure by a person at any time to take a supportive step that it would be practicable to take is unreasonable unless-

(a)at the time in question the person reasonably believes that the step can be taken at a later time and still be as effective as it would be if taken immediately; and

(b)not taking the step immediately is reasonable in the circumstances.

(6) Any person for whose acts another person may be vicariously liable is to be treated for the purposes of this section as an employee of that other person.

Part 2 not applicable where other authority for act

60.-(1) Section 9 does not apply in relation to an act-

(a)which gives effect to a relevant decision; or

(b)which a person has a power (or duty) to do under any other statutory provision (including any provision of this Act).

(2) In this section a "relevant decision" means a decision concerning the care, treatment or personal welfare of a person ("P") which-

(a)is made by the court on P's behalf under section 113(2)(a);

(b)is made in accordance with this Act by an attorney under a lasting power of attorney granted by P and is within the scope of the attorney's authority;

(c)is made in accordance with this Act by a deputy appointed for P by the court and is within the scope of the deputy's authority; or

(d)where P is under 18, is a decision made by a parent or guardian of P which is effective under any rule of law.

Power to make further provision

61.-(1) The Department may by regulations make provision modifying any provision of this Part in relation to cases where-

(a)an act is proposed to be done in respect of a person after that person has reached the age of 16, but

(b)at the time the act is proposed, the person is under 16.

(2) The Department may by regulations make provision enabling prescribed relevant documents that are found to be incorrect or defective within a prescribed period from being made-

(a)to be rectified within a prescribed period, and

(b)to have effect as if originally made as rectified.

(3) In subsection (2) "relevant document" means an authorisation, or other document, made for the purposes of this Part.

Disregard of certain detention

Disregard of certain detention

62.-(1) In this section a "person who has been subject to short-term detention" means a person who-

(a)for any period, has been detained under this Part in a hospital in circumstances amounting to a deprivation of liberty otherwise than under an authorisation under Schedule 1; and

(b)immediately after the end of that period, was not detained in a hospital in circumstances amounting to a deprivation of liberty under an authorisation under Schedule 1.

(2) In this section "the relevant detention" means the detention mentioned in subsection (1)(a).

(3) Where a question seeking information with respect to the previous health or circumstances of a person who has been subject to short-term detention is put to that or any other person, otherwise than in judicial proceedings-

(a)the question is to be treated as not relating to the relevant detention and the answer may be framed accordingly; and

(b)the person questioned is not to be subjected to any liability or otherwise prejudiced in law by reason of any failure to acknowledge or disclose the relevant detention in answering the question.

(4) An obligation imposed on a person ("A") by any rule of law or by the provisions of any agreement or arrangement to disclose any matters does not extend to requiring disclosure of the relevant detention of a person who has been subject to short-term detention (whether A or another person).

(5) The fact that a person who has been subject to short-term detention has been subject to the relevant detention, or any failure to disclose that fact, is not a proper ground for dismissing or excluding the person from any office, profession, occupation or employment, or for prejudicing the person in any way in any occupation or employment.

(6) Any disqualification, disability, prohibition or other penalty which, by virtue of any rule of law or statutory provision other than this Act, attaches to or is imposed on any person by reason of the fact that the person has been detained in circumstances amounting to a deprivation of liberty under this Act is not to attach to a person merely because he or she is a person who has been subject to short-term detention.

(7) In subsection (3) "judicial proceedings" includes, in addition to proceedings before any of the ordinary courts of law, proceedings before any tribunal, body or person that has power-

(a)by virtue of any statutory provision, law, custom or practice,

(b)under the rules governing any association, institution, profession, occupation or employment, or

(c)under any provision of an agreement providing for arbitration with respect to questions arising under the agreement,

to determine any question affecting the rights, privileges, obligations or liabilities of any person, or to receive evidence affecting the determination of any such question.

CHAPTER 9DEFINITIONS FOR PURPOSES OF PART 2

Meaning of "serious intervention"

"Serious intervention"

63.-(1) In this Part "serious intervention" means an intervention in connection with the care, treatment or personal welfare of P which (or any part of which)-

(a)consists of or involves major surgery;

(b)causes P serious pain, serious distress, or serious side-effects;

(c)affects seriously the options that will be available to P in the future, or has a serious impact on P's day-to-day life; or

(d)in any other way has serious consequences for P, whether physical or non-physical.

(2) Without prejudice to subsection (1), and to avoid any doubt, each of the following is a serious intervention for the purposes of this Part-

(a)any deprivation of liberty;

(b)the imposition of a requirement mentioned in section 28(1)(a) (requirements to attend at particular times or intervals for certain treatment);

(c)the imposition of a community residence requirement (see section 31).

(3) Regulations may provide that a prescribed intervention (except one mentioned in subsection (2))-

(a)is to be regarded as an intervention falling within a particular paragraph of subsection (1); or

(b)is not to be regarded as such an intervention.

(4) If-

(a)the act mentioned in section 9(1) is, or is part of, an intervention which turns out to be a serious intervention, but

(b)at the time the act is done D reasonably believes that the risk that the intervention will turn out to be a serious intervention is negligible,

that act is to be treated for the purposes of this Part as if the intervention were not a serious intervention.

Acts that are "part of" serious interventions

64.-(1) This section applies where, for any purpose of this Part, a question arises whether a particular act is part of an intervention which is a serious intervention.

(2) Where an act is done which-

(a)is a use of force or a threat to use force, and

(b)is done with the intention of securing the doing of another act in connection with the care, treatment or personal welfare of a person which that person resists,

the act mentioned in paragraph (a) is to be taken to be part of the same intervention as the act mentioned in paragraph (b).

(3) Nothing in this section limits the acts that are to be regarded as part of a particular intervention.

Meaning of "emergency"

Meaning of "emergency" in relation to safeguard provisions

65.-(1) This section applies in relation to sections 13, 15, 16, 17, 19, 20, 24, 26, 28 and 35 (provisions which contain additional safeguards, and which require a determination of whether the situation is an "emergency").

(2) For the purposes of any one of those sections, the situation is an "emergency" if at the relevant time-

(a)D knows that the safeguard in that section is not met, but reasonably believes that to delay until that safeguard is met would create an unacceptable risk of harm to P; or

(b)D does not know whether that safeguard is met, but reasonably believes that to delay even until it is established whether it is met would create an unacceptable risk of harm to P.

(3) But the situation is not an "emergency" by virtue of falling within subsection (2) if the fact that the safeguard in question is not met by the relevant time is to any extent due to an unreasonable failure by D to take a step that it would have been practicable to take for the purposes of ensuring that the safeguard is met by the relevant time.

(4) Subsections (2) and (3) are to be read in accordance with section 66.

(5) For the purposes of any section mentioned in subsection (1), the situation is also an "emergency" if, at the time when the act mentioned in that section is done, D-

(a)does not know of the effect of that section;

(b)is not a person with expertise such that he or she could reasonably be expected to know of its effect; and

(c)reasonably believes that it is necessary to do the act without delay to prevent harm to P.

Section 65: definitions etc

66.-(1) For the purposes of section 65(2) and (3) and this section-

(a)the safeguard in section 13 is met when a formal capacity assessment has been carried out and a statement of incapacity made;

(b)the safeguard in section 15 is met when a nominated person is in place for P;

(c)the safeguard in section 16 or 17 is met when a second opinion is obtained;

(d)the safeguard in section 19, 20, 24, 26 or 28 is met where the provision of treatment, detention or requirement mentioned in that section is authorised;

(e)the safeguard in section 35 is met when-

(i)an independent mental capacity advocate is instructed under section 91 to represent and provide support to P in the determination of what would be in P's best interests; or

(ii)P has made (and not revoked) a declaration under section 90 or 93 in relation to the matter.

(2) In section 65(2) and (3) and this section "the relevant time" means-

(a)in relation to section 15 or 35, the time when D determines that the act mentioned in that section would be in P's best interests;

(b)in relation to any other section mentioned in section 65(1), the time when the act mentioned in that section is done.

(3) For the purposes of section 65(2), the risk of harm to P created by delaying until a particular safeguard is met, or until it is established whether it is met, is an "unacceptable" risk if-

(a)the seriousness of the harm that could be caused to P by such delay, and

(b)the likelihood of the harm,

are such as to outweigh the risk of harm to P of not complying with the safeguard.

(4) In determining for the purposes of section 65(2) and this section when a safeguard would be met, or when it would be established whether a safeguard is met, it must be assumed that any necessary steps would be taken as soon as practicable.

(5) For the purposes of section 65(3), a failure by D at any time ("the time in question") to take a practicable step for the purposes of ensuring that the safeguard is met by the relevant time is unreasonable unless, at the time in question-

(a)he or she reasonably believes that (ignoring any provision of this Act relating to emergency situations) the matter is not one to which the safeguard will apply; or

(b)he or she reasonably believes that that step does not have to be taken immediately in order for the safeguard to be met in time, and not taking that step immediately is reasonable in the circumstances.

(6) Expressions used in a paragraph of subsection (1) and in the section mentioned in that paragraph have the same meaning in that paragraph as in that section.

Failure by persons other than D to take steps to ensure safeguard met

67.-(1) This section has effect in relation to section 65(2) in a case where D is an employee of a person ("E").

(2) For the purposes of determining whether E is liable in relation to an act done in a situation falling within section 65(2), any reference in section 65(3) or 66(5) to "D" includes any other employee of E.

(3) Any person for whose acts another person may be vicariously liable is to be treated for the purposes of this section as an employee of that other person.

Other definitions for purposes of Part 2

Interpretation of Part 2: general

68.-(1) For the purposes of this Part-

"community residence requirement" has the meaning given by section 31;

"emergency"-

"reasonable objection": an act is done "despite" a reasonable objection from a person's nominated person if the nominated person-

"requirement": a requirement for a person ("P") to do a thing is imposed on P by a person if that person tells P (by any means and in any words) that if P does not do that thing, further action will or may be taken in respect of P;

"resisted by": an act is resisted by a person if the doing of the act is secured by the use of force or a threat to use force;

"serious intervention" is to be read in accordance with section 63;

"subject to an additional measure" has the meaning given by section 23;

"treatment with serious consequences" has the meaning given by section 21;

treatment that "might be" treatment with serious consequences: references to such treatment are to treatment where the risk of the treatment turning out to be treatment with serious consequences is more than negligible.

(2) See also sections 304 to 306 (definitions for purposes of Act).

PART 3NOMINATED PERSON

Nominated person

Nominated person

69.-(1) A person is the nominated person, within the meaning of this Act, of another person ("P") if-

(a)the person is currently appointed as P's nominated person under section 70 or 81; or

(b)where no-one is so appointed, the person is the default nominated person for P under sections 73 to 76.

(2) For the purposes of this Part a person is "currently" appointed under section 70 or 81 if-

(a)the person has been appointed under that section; and

(b)the appointment has not been revoked under any provision of this Part and the person has not resigned under any such provision.

Appointment by person of his or her nominated person

Appointment of nominated person

70.-(1) A person who is 16 or over ("the appointer") may, at any time when he or she has capacity to do so, appoint one person who is 16 or over to be the appointer's nominated person.

(2) An appointment under this section is valid only if-

(a)the appointment is in writing and the conditions of section 79 (formalities) are met; and

(b)the person appointed consents in writing to being the appointer's nominated person.

(3) That consent may be given-

(a)before section 79 is complied with (in which case the appointment takes effect when that section is complied with); or

(b)at the same time as, or after, that section is complied with (in which case the appointment takes effect when the consent is given).

(4) An appointment under this section remains effective even where, at a time after the appointment, the appointer no longer has capacity to make decisions about his or her nominated person.

Revocation of appointment

71.-(1) An appointment may, where the appointer has capacity to revoke it, be revoked by the appointer.

(2) A revocation under subsection (1) is valid only if the revocation is in writing and the conditions of section 79 (formalities) are met.

(3) An appointment made by a person revokes any previous appointment made by that person.

(4) In this section "appointment" means an appointment under section 70.

Resignation

72.  A person appointed under section70 may resign as the appointer's nominated person by giving notice in writing to that effect to the appointer.

Default nominated person

Default nominated person

73.-(1) Where-

(a)a person ("P") is 16 or over, and

(b)there is no person currently appointed as P's nominated person under section 70 or 81,

this section and sections 74 to 76 apply to determine who (if anyone) is the default nominated person for P.

(2) The default nominated person for P is-

(a)where there is only one person who is within the list in subsection (3), that person;

(b)where there are two or more persons who are within that list, the person highest up the list;

but this is subject to sections 74 and 75.

(3) The list is as follows-

(a)P's carer (as defined by section 76);

(b)P's spouse or civil partner (except one within subsection (4) (separation etc));

(c)a person within subsection (5) (person living with P as spouse etc);

(d)P's child;

(e)P's parent;

(f)P's brother or sister;

(g)P's grandparent;

(h)P's grandchild;

(i)P's aunt or uncle;

(j)P's niece or nephew;

(k)a person within subsection (6) (person living with P etc).

(4) A person is within this subsection if-

(a)the person is permanently separated from P (either by agreement or under an order of a court); or

(b)the person has deserted or been deserted by P for a period which has not ended.

(5) A person is within this subsection if-

(a)the person is living with P as if he or she were P's spouse or civil partner, and has been so living for a period of at least 6 months; or

(b)if P is living in a relevant place, at the relevant time the person had been living with P as if he or she were P's spouse or civil partner for a period of at least 6 months.

(6) A person is within this subsection if-

(a)the person is someone with whom P lives and has been living for a period of at least 5 years; or

(b)if P is living in a relevant place, at the relevant time the person was someone with whom P had been living for a period of at least 5 years.

(7) In this section-

"relevant place" means-

"the relevant time" means the time when P started living at the relevant place.

Section 73: the list

74.-(1) This section contains provisions about the list in section 73(3) ("the list").

(2) A person within the list ("A") is "higher" up the list than another person within the list ("B") if A is within a paragraph of the list that comes before the paragraph which B is within.

(3) Where-

(a)two or more persons are within the same paragraph of the list, and

(b)there is no person higher up the list,

the default nominated person is the older (or oldest) of those persons (but this is subject to subsections (5) and (6)).

(4) In determining who is the default nominated person for P-

(a)a stepchild of a person is to be treated as the child of that person; and

(b)a relationship of the half-blood is to be treated as a relationship of the whole blood;

but this is subject to subsections (5) and (6).

(5) Subsection (6) applies where-

(a)P has two or more relatives within the same paragraph of the list ("the relevant paragraph");

(b)there is no person higher up the list; and

(c)one or more of the relatives is within the relevant paragraph because of subsection (4).

(6) In determining who is the default nominated person for P-

(a)any relatives of the whole blood are to be preferred over the relatives who are within the relevant paragraph because of subsection (4);

(b)any relatives of the half-blood are to be preferred over any relatives who are within the relevant paragraph because of subsection (4)(a).

(7) This section is subject to section 75.

Section 73: persons to be disregarded

75.-(1) This section supplements section 73.

(2) In determining who is the default nominated person for P, the following are to be disregarded-

(a)any person under 16;

(b)where P is ordinarily resident in the United Kingdom, the Channel Islands, the Isle of Man or Ireland, any person who is not so resident;

(c)any person who under section 77 (declaration by P) is to be disregarded in determining who is the default nominated person for P;

(d)any person who has in accordance with section 78 declined to be the nominated person for P (and has not withdrawn that notice);

(e)any person who under an order of the Tribunal under section 82 is to be disregarded in determining who is the default nominated person for P.

Section 73: meaning of "carer"

76.-(1) In section 73, the reference to a "carer" of P is to a person who is 16 or over and-

(a)provides a substantial amount of care for and support to P-

(i)on a regular basis; and

(ii)on a domestic basis; or

(b)where P is living in a relevant place, provided a substantial amount of care for and support to P on a regular basis and on a domestic basis, before the relevant time.

(2) For the purposes of subsection (1) care and support is provided on a domestic basis unless it is provided under a contract of employment, under any other contract with any person, or as a volunteer for any organisation.

(3) Where there are two or more persons within subsection (1), but one of them provides (or provided, before the relevant time) most of the care for and support to P, that person is P's carer for the purposes of section 73.

(4) Where there are two or more persons within subsection (1) and subsection (3) does not apply, each of those persons is P's "carer" (and accordingly section 74(3) applies).

(5) In this section "relevant place" and "the relevant time" have the same meaning as in section 73.

Declarations etc

Declaration that particular person not to be nominated person

77.-(1) A person who is 16 or over and has capacity to do so ("the declarer") may make a declaration-

(a)stating that a person specified in the declaration is not to be the declarer's nominated person;

(b)specifying two or more persons and stating that neither (or none) of them is to be the declarer's nominated person;

(c)stating that no person of a description specified in the declaration is to be the declarer's nominated person.

(2) Where a declaration has been made under subsection (1) and has not been revoked, any person who is specified, or of a description specified, in the declaration-

(a)is to be disregarded in determining who is the default nominated person for the declarer under sections 73 to 76; and

(b)may not be appointed by the Tribunal under section 81 as the declarer's nominated person (subject to subsection (3)).

(3) Subsection (2)(b) does not apply where there has been a change of circumstances since the declaration was made that, in the Tribunal's opinion, justifies appointing the person concerned.

(4) A declaration under this section remains effective even where, at a time after making the declaration, the declarer no longer has capacity to make decisions about the declaration.

(5) A declaration under this section may be revoked by the declarer at any time when the declarer has capacity to do so.

(6) A declaration, or revocation of a declaration, under this section is valid only if it is in writing and the conditions of section 79 (formalities) are met.

Notice declining to be a person's nominated person

78.-(1) A person may at any time decline to be the default nominated person for another person ("P") by giving notice in writing to that effect to P.

(2) A person who has given notice under subsection (1) may at any time withdraw the notice by giving a further notice in writing to P.

Formalities

Formalities for documents under Part 3

79.-(1) This section applies in relation to-

(a)the appointment of a nominated person under section 70;

(b)the revocation of an appointment under section 71(1);

(c)the making of a declaration under section 77(1);

(d)the revocation of a declaration under section 77(5).

(2) For the purposes of section 70(2), 71(2) and 77(6), the conditions of this section are met if-

(a)the document containing the appointment, revocation or declaration is signed by the person making the appointment, revocation or declaration ("X");

(b)X's signature is witnessed by a person of a prescribed description; and

(c)the person witnessing the signature certifies that, in his or her opinion, X-

(i)understands the effect of the appointment, revocation or declaration; and

(ii)has not been subjected to any undue pressure in relation to the appointment, revocation or declaration.

(3) In the case of an appointment of a nominated person under section 70, the certificate under subsection (2)(c) must include a statement that, in the opinion of the person witnessing the signature, X understands that the appointment may result in information about X (including sensitive personal information) being disclosed by virtue of this Act to the person appointed.

(4) Regulations may make provision for this section to have effect with prescribed modifications where a person making an appointment, revocation or declaration mentioned in subsection (1) is physically unable to make a signature.

Powers of the Tribunal

Application to Tribunal for appointment of nominated person

80.-(1) A qualifying person may apply to the Tribunal for an order under section 81 in relation to a person who is 16 or over ("P") if the qualifying person reasonably believes that-

(a)P lacks capacity to make decisions about who should be his or her nominated person; and

(b)one of the conditions mentioned in subsection (2) is met.

(2) Those conditions are-

(a)the person who is P's nominated person is not suitable to be so;

(b)there is no-one who is P's nominated person;

(c)it is not practicable to establish whether P has a nominated person;

(d)someone is P's nominated person, but it is not practicable to establish who that is.

(3) The factors that may be taken into account in determining whether a person is not suitable to be P's nominated person include whether the person has behaved, is behaving or proposes to behave in a way that is not in P's best interests.

(4) An application may be made on the ground mentioned in subsection (2)(c) or (d) only if the applicant has taken reasonable steps to establish-

(a)whether P has a nominated person; or (as the case may be)

(b)who P's nominated person is.

(5) In this section "a qualifying person" means any of the following-

(a)an appropriate healthcare professional;

(b)if P is an in-patient in a hospital or care home, the managing authority of the hospital or care home;

(c)if P is living in a place of a prescribed description, a prescribed person;

(d)an attorney under a lasting power of attorney, or an enduring power of attorney, granted by P;

(e)a deputy appointed for P by the court;

(f)any relative of P;

(g)any person interested in P's welfare.

(6) In this section "appropriate healthcare professional" means a person of a prescribed description.

(7) Where the applicant is a person within subsection (5)(a) or (b), the applicant must send a copy of the application to RQIA as soon as practicable.

Tribunal's power to appoint nominated person

81.-(1) This section applies where an application is made to the Tribunal under section 80 in relation to a person ("P").

(2) The Tribunal may, if it is satisfied of the matters mentioned in paragraphs (a) and (b) of section 80(1), make an order under this section.

(3) An order under this section is an order appointing as P's nominated person one person who is 16 or over and is specified in the order.

(4) An appointment under this section revokes any previous appointment under this section or section 70 of a person as P's nominated person.

(5) A person who has been appointed under this section may resign as P's nominated person by giving notice in writing to that effect to P.

(6) This section is subject to section 77(2)(b) (effect of declaration by P).

Tribunal's power to disqualify person from being default nominated person

82.-(1) This section applies where the Tribunal makes an order under section 81 on the ground that the person who is P's nominated person ("the person concerned") is not suitable to be P's nominated person.

(2) The Tribunal may order that, if at any time a determination falls to be made of who (if anyone) is the default nominated person for P, the person concerned is to be disregarded.

Revocation of Tribunal's appointment where P regains capacity

83.-(1) This section applies if-

(a)an appointment of a nominated person for a person ("P") has been made by the Tribunal under section 81; and

(b)P regains capacity to make decisions about who should be his or her nominated person.

(2) P may, at any time while he or she has capacity to do so, apply to the Tribunal for revocation of the appointment.

(3) On an application under this section the Tribunal must make an order revoking the appointment under section 81 unless it is satisfied that P no longer has capacity to make decisions about who should be his or her nominated person.

(4) If on such an application the Tribunal is satisfied-

(a)that P no longer has capacity to make decisions about who should be his or her nominated person, but

(b)that a different person should be appointed as P's nominated person,

the Tribunal may make an order under section 81.

Duties in relation to nominated person

Duties in relation to nominated person: supplementary

84.-(1) This section applies where under any provision of or made under this Act a person ("the person concerned") is subject to-

(a)a duty to consult (if it is practicable and appropriate to do so), and take into account the views of, the nominated person of a person ("P") in determining what would be in P's best interests; or

(b)a duty to inform, send a document to, or do any other thing in relation to, P's nominated person.

(2) Subsection (3) applies if the person concerned-

(a)takes reasonable steps to establish who P's nominated person is; and

(b)at the relevant time reasonably believes that a particular person ("NP") is P's nominated person.

(3) In determining whether the person concerned has complied with the duty in question, anything done by that person in relation to NP for the purposes of that duty is to be treated as if NP were P's nominated person (even if NP was in fact not P's nominated person).

(4) Subsection (5) applies (subject to subsection (6)) if the person concerned takes reasonable steps to establish who P's nominated person is and at the relevant time-

(a)the person concerned reasonably believes that there is no-one who is P's nominated person;

(b)it has not been practicable to establish whether P has a nominated person; or

(c)it has not been practicable to establish who P's nominated person is.

(5) The person concerned is to be taken not to have contravened the duty in question (even if it has in fact been contravened because there is a person who is P's nominated person as respects whom the duty has not been complied with).

(6) Subsection (5) does not apply if-

(a)the duty in question is the duty imposed by section 7(7) and (11)(a) (duty to consult P's nominated person, if any, in determining best interests); and

(b)the case is one where by virtue of section 15 or 54 a nominated person must be in place for P at the relevant time.

(7) In this section "the relevant time" means-

(a)in relation to a duty mentioned in subsection (1)(a), the time when the person concerned determines what would be in P's best interests;

(b)in relation to a duty mentioned in subsection (1)(b), the time when the duty applies.

(8) Subsections (2)(b) and (4)(a) are to be read in accordance with section 85(1).

(9) Subsection (4)(b) and (c) are to be read in accordance with section 85(3).

Determining who is nominated person

85.-(1) Where a person ("D") is determining for any purpose of this Act whether another person ("P") has a nominated person or who P's nominated person is, then unless D has reason to believe that an action mentioned in subsection (2) has been taken, D may assume that that action has not been taken.

(2) The actions referred to in subsection (1) are-

(a)the appointment of a person as P's nominated person;

(b)the revocation of such an appointment;

(c)a declaration by P that a particular person is not to be P's default nominated person;

(d)any other action under Part 3 which would affect whether P has a nominated person or who P's nominated person is.

(3) For the purposes of this Act it is "practicable to establish" whether a person has a nominated person, or who a person's nominated person is, if it is practicable to form a reasonable belief about that matter (having regard to subsection (1)).

PART 4INDEPENDENT MENTAL CAPACITY ADVOCATES

Independent mental capacity advocates

Independent mental capacity advocates

86.-(1) Each HSC trust must make arrangements to secure that, where the trust is required by section 91 to instruct an independent mental capacity advocate to represent and provide support to a person ("P") in the determination of whether a particular act in relation to which P lacks capacity would be in P's best interests, an independent mental capacity advocate is available to be instructed by the trust to represent and provide support to P in that determination.

(2) Arrangements under subsection (1) may include provision for payments to be made to, or in relation to, persons carrying out functions by virtue of the arrangements.

(3) In making arrangements under subsection (1), and instructing an independent mental capacity advocate under section 91, an HSC trust must have regard to the principle that a person to whom a proposed act would relate should be represented by someone who is independent of any person who will be responsible for the act if it is done.

(4) In this Act "independent mental capacity advocate" means a person who has been appointed by an HSC trust, in accordance with regulations under the following provisions of this section, to be a person to whom the trust may from time to time offer instructions under section 91.

(5) The Department may make regulations about the arrangements that may be entered into by HSC trusts for the purposes of this section.

(6) The regulations may in particular-

(a)provide that a person may be appointed as mentioned in subsection (4) only if the person meets prescribed conditions;

(b)provide for the appointment of a person to be subject to prescribed conditions;

(c)enable an appointment to be such that the person appointed will only be offered instructions of a description specified by the appointment.

(7) The conditions that may be prescribed under subsection (6)(a) include-

(a)a condition that the person is approved, or belongs to a description of persons approved, in accordance with the regulations;

(b)a condition that the person has prescribed qualifications or skills or has undertaken prescribed training.

Functions of independent mental capacity advocates: provision of support, etc

87.-(1) The Department may make regulations about the functions of independent mental capacity advocates.

(2) The regulations may in particular require prescribed steps to be taken by an independent mental capacity advocate who has been instructed under section 91 to represent and provide support to a person ("P") in the determination of whether a particular act in relation to which P lacks capacity would be in P's best interests.

(3) The steps that may be prescribed under subsection (2) include steps for the purpose of-

(a)providing support to P so that P may participate as fully as possible in any relevant decision;

(b)obtaining and evaluating relevant information;

(c)ascertaining P's past and present wishes and feelings, and the beliefs and values that would be likely to influence P's decision if P had capacity;

(d)ascertaining what alternative courses of action are available in relation to P;

(e)informing persons responsible for determining what would be in P's best interests of the independent mental capacity advocate's conclusions;

(f)informing P's nominated person (if any) of matters relevant to the nominated person.

(4) The regulations may also make provision as to circumstances in which an independent mental capacity advocate may challenge, or provide assistance for the purposes of challenging, any relevant decision.

Procedure for ensuring that an independent mental capacity advocate is instructed

Request for independent mental capacity advocate to be instructed

88.-(1) This section applies where it reasonably appears to an appropriate healthcare professional-

(a)that a determination needs to be made of whether a particular act would be in the best interests of a person ("P") who is 16 or over and lacks capacity in relation to the matter; and

(b)that by reason of section 35 or 55, an independent mental capacity advocate needs to be instructed to represent and provide support to P in that determination.

(2) The appropriate healthcare professional may request the relevant trust to instruct an independent mental capacity advocate to represent and provide support to P in the determination of whether the act would be in P's best interests.

(3) A request under this section may be made only if the steps required by section 89 have been taken so far as practicable.

(4) A request under this section must be in a prescribed form and include prescribed information.

(5) In this section-

"appropriate healthcare professional" means a person of a prescribed description.

"the relevant trust" means the HSC trust in whose area the act would be carried out.

Steps to be taken before independent mental capacity advocate may be requested

89.-(1) The steps referred to in section 88(3) are as follows.

(2) P must be given prescribed information relating to independent mental capacity advocates.

(3) P must be given an opportunity to decide whether to make a declaration under section 90 (refusal by P of independent mental capacity advocate).

(4) If P's decision is to make such a declaration, P must be given an opportunity to make that declaration.

(5) But the steps in subsections (3) and (4) need not be taken where P does not have capacity to make a declaration under section 90.

(6) The information prescribed under subsection (2) must include notice that, if an independent mental capacity advocate is instructed, this may result in information about P (including sensitive personal information) being disclosed by virtue of this Act to the independent mental capacity advocate.

Right to declare that no independent mental capacity advocate to be instructed

90.-(1) Where the steps in section 89 have been taken, P may (at any time when P has capacity to do so) declare that he or she does not wish an independent mental capacity advocate to be instructed to represent and provide support to him or her in the matter in question.

(2) A declaration may be revoked by P at any time when P has capacity to do so.

(3) A declaration, or a revocation of a declaration, is valid only if it is in writing and the conditions of section 95 (formalities) are met.

(4) Where a declaration has been made (and not revoked)-

(a)no request may be made under section 88 for an independent mental capacity advocate to be instructed to represent and provide support to P in the matter in question; and

(b)accordingly, no such instruction may be given under section 91.

(5) In this section "declaration" means a declaration under this section.

Instruction of independent mental capacity advocate

91.  Where-

(a)an HSC trust receives a request duly made under section 88 for the trust to instruct an independent mental capacity advocate to represent and provide support to a person ("P") in the determination of whether a particular act would be in P's best interests, and

(b)no declaration has been made by P under section 90 in relation to the matter (or a declaration has been made but revoked),

the trust must instruct an independent mental capacity advocate to represent and provide support to P in the determination of whether the act would be in P's best interests.

Powers of independent mental capacity advocates

92.-(1) This section applies where an independent mental capacity advocate has been instructed as mentioned in section 91 to represent and provide support to a person ("P").

(2) The independent mental capacity advocate may do anything within subsection (3) or (4) for the purpose of exercising any of his or her functions.

(3) The independent mental capacity advocate may, at any reasonable time, visit P and interview P in private.

(4) The independent mental capacity advocate may, at any reasonable time, require the production of, examine and take copies of-

(a)any health records relating to P, or

(b)any records relating to P's care, treatment or personal welfare,

that the person holding the record considers may be relevant to the independent mental capacity advocate's investigation.

Procedure after instruction of independent mental capacity advocate

Right of person to discontinue involvement of independent mental capacity advocate

93.-(1) Where an independent mental capacity advocate has been instructed under section 91 to represent and provide support to a person in a matter, the person may (at any time when the person has capacity to do so) declare that he or she does not wish to continue to have the services of an independent mental capacity advocate in the matter.

(2) Where a declaration is made, the HSC trust that instructed the independent mental capacity advocate must withdraw the instruction.

(3) A declaration may be revoked by the person at any time when the person has capacity to do so.

(4) A declaration, or a revocation of a declaration, is valid only if it is in writing and the conditions of section 95 (formalities) are met.

(5) In this section "declaration" means a declaration under this section.

Continuing duty of trust in relation to independent mental capacity advocate

94.-(1) The duty of an HSC trust under section 91 is to be taken to include a duty to instruct a new independent mental capacity advocate to represent and provide support to P in the matter in question if for any reason an independent mental capacity advocate previously instructed under that section to represent and provide support to P in that matter ceases to be able to do so.

(2) But this does not apply where-

(a)the reason why the independent mental capacity advocate previously instructed is no longer able to represent and provide support to P in the matter is that P has made a declaration under section 93; and

(b)that declaration has not been revoked.

Formalities

Formalities for declarations under Part 4

95.-(1) This section applies to the making or revocation of a declaration under section 90 or 93.

(2) For the purposes of section 90(3) or 93(4), the conditions of this section are met if-

(a)the document containing the declaration or revocation is signed by the person making the declaration or revocation ("P");

(b)P's signature is witnessed by a person of a prescribed description; and

(c)the person witnessing the signature certifies that, in his or her opinion, P-

(i)understands the effect of the declaration or revocation; and

(ii)has not been subjected to any undue pressure in relation to the declaration or revocation.

(3) Regulations may make provision for subsection (2) to have effect with prescribed modifications where the person making or revoking the declaration is physically unable to make a signature.

Power to adjust role of independent mental capacity advocates

Power to adjust role of independent mental capacity advocates

96.-(1) The Department may by regulations-

(a)expand the role of independent mental capacity advocates in relation to persons who are 16 or over and lack capacity;

(b)adjust the obligation to make arrangements imposed by section 86.

(2) The regulations may in particular-

(a)prescribe circumstances in which an independent mental capacity advocate must be instructed by a person of a prescribed description to represent and provide support to a person who lacks capacity;

(b)prescribe circumstances in which an independent mental capacity advocate may be so instructed;

(c)contain provision about the making of requests for independent mental capacity advocates to be instructed in prescribed circumstances;

(d)contain provision about the functions of independent mental capacity advocates instructed in prescribed circumstances.

(3) The regulations may make provision in any way that the Department considers appropriate and may in particular-

(a)apply, or make provision corresponding to, any provision within subsection (4) (with or without modifications);

(b)amend any provision of this Part.

(4) The provisions are-

(a)any provision of this Part;

(b)any provision of regulations made under this Part;

(c)any provision that could be made by regulations under this Part.

PART 5LASTING POWERS OF ATTORNEY

Creation of lasting power of attorney

Lasting powers of attorney

97.-(1) A lasting power of attorney is a power of attorney by which the donor confers on the attorney (or attorneys) authority to make decisions about (or about specified matters concerning) all or any of the following-

(a)the donor's care, treatment and personal welfare,

(b)the donor's property and affairs,

and which includes authority to make such decisions in circumstances where the donor no longer has capacity.

(2) A lasting power of attorney is created only if-

(a)an instrument conferring authority of the kind mentioned in subsection (1) is made and registered in accordance with Schedule 4;

(b)at the time when the donor executes the instrument, the donor is 16 or over and has capacity to execute it; and

(c)section 101 (requirements as respects attorneys) is complied with.

(3) An instrument which-

(a)purports to create a lasting power of attorney, but

(b)does not comply with this section, section 101 or Schedule 4,

confers no authority.

(4) The authority conferred by a lasting power of attorney is subject to-

(a)the provisions of this Act and, in particular-

(i)sections 98 to 100 (restrictions);

(ii)sections 1, 2, 5 and 7 (principles, best interests); and

(b)any conditions or restrictions specified in the instrument.

(5) In the following provisions of this Part, in relation to a lasting power of attorney or an instrument executed with a view to creating such a power-

(a)any reference to "care, treatment and personal welfare" includes matters concerning care, treatment or personal welfare that are specified in the power or instrument;

(b)any reference to "property and affairs" includes matters concerning property or affairs that are specified in the power or instrument.

(6) Subsections (2) and (3) are subject to-

(a)section 102(5) (joint and several appointments: breach of requirements as respects some but not all attorneys); and

(b)section 103(6) (breach of requirements as respects replacement attorneys).

Scope of lasting power of attorney

Restrictions on scope of lasting power of attorney

98.-(1) Where a lasting power of attorney authorises an attorney to make decisions about the donor's care, treatment and personal welfare (or about any of those matters), the authority-

(a)does not extend to making such decisions in circumstances other than those where the donor lacks, or the attorney reasonably believes that the donor lacks, capacity; and

(b)is subject to section 99(2) (effective advance decision to refuse treatment made after execution of instrument).

(2) Where a lasting power of attorney authorises an attorney to make decisions about the donor's treatment (whether or not it also authorises the making of decisions about other matters), the authority extends to giving or refusing consent to the provision of a treatment by a person providing health care for the donor; but this subsection-

(a)is subject to subsections (1) and (7) and to any conditions or restrictions in the instrument; and

(b)authorises the giving or refusing of consent to the provision of life-sustaining treatment only if the instrument contains express provision to that effect.

(3) A lasting power of attorney does not authorise an attorney to deprive the donor of his or her liberty or to authorise another person to deprive the donor of his or her liberty.

(4) A lasting power of attorney authorises an attorney to do, or to authorise another person to do, an act restraining the donor only if the conditions in subsection (6) are met.

(5) In subsection (4) an "act restraining the donor" means an act (other than a deprivation of the donor's liberty) which-

(a)is intended to restrict the donor's liberty of movement, whether or not the donor resists; or

(b)is a use of force or a threat to use force and is done with the intention of securing the doing of an act which the donor resists.

(6) The conditions referred to in subsection (4) are that the attorney reasonably believes-

(a)that the donor lacks capacity in relation to the matter in question;

(b)that there is a risk of harm to the donor if the attorney does not do or (as the case may be) authorise the act restraining the donor; and

(c)that doing or authorising that act is a proportionate response to-

(i)the likelihood of harm to the donor; and

(ii)the seriousness of the harm concerned.

(7) A lasting power of attorney does not authorise an attorney to give consent to psychosurgery in respect of the donor.

(8) Where the donor of a lasting power of attorney was under 18 when he or she executed the instrument mentioned in section 97(2)(a)-

(a)the lasting power of attorney has the same effect as it would have if the donor had been 18 or over when he or she executed the instrument; except that

(b)at any time when the donor is under 18, the authority conferred by the lasting power does not extend to doing anything that the donor could not do at that time (even if the donor had capacity, within the meaning of Part 1, in relation to the matter in question).

(9) The Department may by regulations amend subsection (7) so as to extend the descriptions of treatment to which an attorney may not give consent.

Relationship between advance decisions and lasting powers of attorney

99.-(1) This section applies in relation to any authority conferred on an attorney by a lasting power of attorney to give or refuse consent to the carrying out or continuation of a treatment.

(2) The authority is subject to any effective advance decision to refuse the treatment made by the donor after, or at the same time as, the execution of the relevant instrument.

(3) Any relevant decision to refuse the treatment made by the donor before the execution of the relevant instrument is to be treated as having been withdrawn by the execution of the relevant instrument (and accordingly is not an effective advance decision to refuse the treatment).

(4) In this section-

(a)"an effective advance decision to refuse the treatment" means a decision which, under the common law relating to advance decisions, has the same effect as if at the material time the donor-

(i)refused consent to the treatment's being carried out or continued; and

(ii)had capacity to refuse that consent;

(b)"the material time" means the time when the question arises whether the treatment should be carried out or continued;

(c)"relevant decision to refuse the treatment" means a decision that would (but for the execution of the relevant instrument) have been an effective advance decision to refuse the treatment;

(d)references to the "execution of the relevant instrument" are to the execution by the donor of an instrument with a view to creating the lasting power of attorney.

(5) Subsection (3) does not affect any rule of law under which a decision that would otherwise fall within subsection (4)(a) is to be regarded as having been withdrawn.

Scope of lasting powers of attorney: gifts

100.-(1) Where a lasting power of attorney authorises an attorney to make decisions about the donor's property and affairs, it does not authorise the attorney to dispose of the donor's property by making gifts except to the extent permitted by subsection (2).

(2) The attorney may make gifts-

(a)on customary occasions to persons (including the attorney) who are related to or associated with the donor, or

(b)to any charity to which the donor made or might have been expected to make gifts,

if the value of each such gift is not unreasonable having regard to all the circumstances and, in particular, the size of the donor's estate.

(3) "Customary occasion" means-

(a)a birthday, the birth of a child, a marriage or anniversary of a marriage, or the formation or anniversary of a civil partnership; or

(b)any other occasion on which presents are customarily given within families or among friends or associates.

(4) Subsection (2) is subject to any conditions or restrictions in the instrument.

Appointment of attorneys and replacements

Appointment of attorneys: requirements as respects attorneys

101.-(1) A person appointed as an attorney by an instrument executed with a view to creating a lasting power of attorney (a "relevant instrument") must be-

(a)an individual who is 18 or over at the time the instrument is executed; or

(b)if the instrument relates only to the donor's property and affairs, either such an individual or a trust corporation.

(2) An individual who is bankrupt may not be appointed by a relevant instrument as an attorney in relation to the donor's property and affairs.

Appointment of two or more attorneys

102.-(1) This section applies in relation to an instrument executed with a view to creating a lasting power of attorney which appoints two or more persons to act as attorneys.

(2) The instrument may appoint them to act-

(a)jointly;

(b)jointly and severally; or

(c)jointly in respect of some matters and jointly and severally in respect of others.

(3) To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be treated as appointing them to act jointly.

(4) If they are to act jointly in respect of all matters, a failure, as respects one of the persons, to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4 prevents a lasting power of attorney from being created.

(5) If they are to act jointly and severally in respect of some or all matters, a failure, as respects one of the persons, to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4-

(a)prevents the appointment from taking effect in that person's case; but

(b)does not prevent a lasting power of attorney from being created in the case of the other or others (limited, where they are to act jointly and severally only in respect of some matters, to those matters).

Appointment of replacement attorneys

103.-(1) An instrument executed with a view to creating a lasting power of attorney-

(a)cannot give a person appointed as attorney power to appoint a substitute or successor (whether of that person or any other person appointed as attorney); but

(b)may itself appoint one or more persons ("replacement attorneys") to replace any person appointed as attorney on the occurrence of a terminating event which has the effect of terminating that person's appointment.

(2) An instrument that appoints a person as a replacement attorney may not appoint a person to replace a replacement attorney (in the event that a terminating event terminates the appointment of the replacement attorney).

(3) Where an instrument executed with a view to creating a lasting power of attorney-

(a)appoints two or more persons as attorneys, and

(b)appoints two or more persons as replacement attorneys,

it may specify the order in which the appointments of the replacement attorneys are to take effect.

(4) Nothing in subsection (3) limits the power under subsection (1)(b) for an instrument to specify a particular person (or persons) as the person who is to replace a particular person appointed as attorney ("A") on the occurrence of a terminating event that terminates A's appointment.

(5) Section 101 (requirements as respects attorneys) applies in relation to the appointment of a person as a replacement attorney as it applies in relation to the appointment of a person as an attorney.

(6) A failure, in relation to a person appointed as a replacement attorney, to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4 does not prevent a lasting power of attorney from being created.

(7) In this section "a terminating event" means-

(a)an event mentioned in section 107(2)(a) to (f);

(b)a termination of an appointment under section 110(4)(b).

Appointment of two or more replacements for a single initial appointee

104.-(1) This section applies to an instrument executed with a view to creating a lasting power of attorney that-

(a)appoints one person ("A") as attorney; and

(b)under section 103(1)(b) appoints two or more persons ("the replacement attorneys") to replace A.

(2) The instrument may provide that the replacement attorneys, if they replace A, are to act-

(a)jointly;

(b)jointly and severally; or

(c)jointly in respect of some matters and jointly and severally in respect of others.

(3) To the extent to which it does not specify whether they are to act jointly or jointly and severally, the instrument is to be treated as appointing them to act jointly.

(4) Subsections (5) and (6) apply where, in relation to some but not all of the replacement attorneys, there is a failure to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4.

(5) To the extent that the replacement attorneys were appointed to act jointly, the appointment mentioned in subsection (1)(b) is of no effect.

(6) To the extent that they were appointed to act jointly and severally, that appointment is to be treated as being an appointment of such of the replacement attorneys as respects whom there is no failure to comply with a requirement of section 101 or Part 1 or 2 of Schedule 4.

Replacement attorneys: position where two or more initial appointees

105.-(1) This section applies where-

(a)an instrument executed with a view to creating a lasting power of attorney appoints two or more persons as attorneys (the "initial appointees");

(b)an initial appointee is replaced under the instrument by virtue of section 103(1)(b); and

(c)on that replacement, there are at least two relevant appointees under the instrument.

(2) A person is a "relevant appointee" under the instrument if-

(a)the person was appointed as an attorney by the instrument (whether or not to act jointly with the initial appointee who has been replaced) and no terminating event has terminated the person's appointment; or

(b)the person has replaced an initial appointee and no terminating event has terminated the person's appointment.

(3) The relevant appointees are-

(a)if the initial appointees were appointed to act jointly, to be treated as appointed to act jointly;

(b)if the initial appointees were appointed to act jointly and severally, to be treated as appointed to act jointly and severally;

(c)if the initial appointees were appointed to act jointly in respect of some matters and jointly and severally in respect of others, to be treated as appointed to act in the same way.

(4) But where a terminating event has terminated a relevant appointee's appointment in relation to the donor's property and affairs (but not in relation to other matters), subsection (3) is subject to that termination.

(5) In this section "terminating event" has the same meaning as in section 103.

Revocation of lasting power etc by donor or on donor's bankruptcy

106.-(1) Where-

(a)an instrument ("a relevant instrument") is executed with a view to creating a lasting power of attorney, or

(b)a lasting power of attorney is registered,

the donor may, at any time when the donor has capacity to do so, revoke the instrument or the lasting power of attorney.

(2) Where a relevant instrument has been executed (but not registered) and the donor is bankrupt, the bankruptcy revokes the instrument so far as it relates to the donor's property and affairs.

(3) Where the donor of a lasting power of attorney is bankrupt-

(a)if the donor is bankrupt merely because an interim bankruptcy restrictions order has effect, the power is suspended, so far as it relates to the donor's property and affairs, for so long as the order has effect;

(b)otherwise, the bankruptcy revokes the power so far as it relates to the donor's property and affairs.

Revocation etc: events relating to the attorney

107.-(1) This section applies where an event mentioned in subsection (2) occurs in relation to a person ("A") appointed as an attorney or replacement attorney by-

(a)a lasting power of attorney; or

(b)an instrument executed with a view to creating a lasting power of attorney.

(2) The events referred to in subsection (1) are-

(a)the disclaimer of the appointment by A in accordance with any prescribed requirements;

(b)the death of A;

(c)the bankruptcy of A (but see subsections (5) to (8));

(d)if A is a trust corporation, its winding-up or dissolution;

(e)the dissolution, annulment or judicial separation of a marriage or civil partnership between the donor and A (but see subsections (5) and (9));

(f)the lack of capacity of A.

(3) The event terminates A's appointment.

(4) If A is an attorney under the power or an intended attorney under the instrument, the event revokes the power or instrument unless-

(a)A was appointed as an attorney by the power or instrument and is replaced under its terms; or

(b)A is one of two or more persons who were to act jointly and severally in respect of any matter and, after the event, there is at least one remaining attorney or intended attorney (as the case may be).

(5) Subsections (3) and (4) are subject-

(a)in the case of an event mentioned in subsection (2)(c), to subsections (6) and (7);

(b)in the case of an event mentioned in subsection (2)(e), to subsection (9).

(6) The bankruptcy of A does not terminate A's appointment, or revoke the instrument or power, in so far as A's authority relates to the donor's care, treatment and personal welfare.

(7) Where A is an attorney under a lasting power of attorney and is bankrupt merely because an interim bankruptcy restrictions order has effect, A's appointment and the power are suspended, so far as they relate to the donor's property and affairs, for so long as the order has effect.

(8) The reference in subsection (7) to the suspension of the power is to be read, where A is one of two or more attorneys who are to act jointly and severally in respect of any matter, as a reference to the suspension of the power so far as it relates to A.

(9) The dissolution, annulment or judicial separation of a marriage or civil partnership does not terminate A's appointment, or revoke the instrument or power, if the instrument or power provides that it is not to do so.

(10) In subsection (4) "intended attorney" means a person who, if the instrument were registered and a lasting power of attorney were created, would be an attorney under the lasting power.

(11) In this section references to the "judicial separation" of a marriage or civil partnership include-

(a)the making of a decree of judicial separation in respect of a marriage, and

(b)the making of a separation order in respect of a civil partnership.

Protection of attorney and others

Protection of attorney and others if no power created or power revoked

108.-(1) Subsections (2) to (4) apply if-

(a)an instrument has been registered under Schedule 4 as a lasting power of attorney, but

(b)a lasting power of attorney was not created,

whether or not the registration has been cancelled at the time of the act or transaction in question.

(2) A person ("X") who acts (whether alone or with others) in purported exercise of the power does not incur any liability (to the donor or any other person) because of the non-existence of the power unless at the time of acting X-

(a)knows that a lasting power of attorney was not created; or

(b)is aware of circumstances which, if a lasting power of attorney had been created, would have terminated X's authority to act as an attorney.

(3) Any transaction between-

(a)one or more persons acting in purported exercise of the power, and

(b)another person ("Y"),

is, in favour of Y, as valid as if the power had been in existence; but this is subject to subsection (4).

(4) Subsection (3) does not apply if, at the time of the transaction, Y-

(a)knows that a lasting power of attorney was not created; or

(b)is aware of circumstances which, if a lasting power of attorney had been created, would have terminated the authority of any person within subsection (3)(a) to act as an attorney.

(5) If the interest of a purchaser depends on whether a transaction was valid by virtue of subsection (3), it is to be conclusively presumed in favour of the purchaser that the transaction was valid if-

(a)the transaction was completed within 12 months of the date on which the instrument was registered; or

(b)Y makes a statutory declaration, before or within 3 months after the completion of the purchase, that Y had no reason at the time of the transaction to doubt that the person or persons mentioned in subsection (3)(a) had authority to dispose of the property which was the subject of the transaction.

(6) In its application to a lasting power of attorney which relates to matters in addition to the donor's property and affairs, section 4 of the Powers of Attorney Act (Northern Ireland) 1971 (protection where power is revoked) has effect as if references to revocation included the cessation of the power in relation to the donor's property and affairs.

Reliance on authority of attorney in relation to treatment etc

109.-(1) This section applies if-

(a)an instrument has been registered under Schedule 4 as a lasting power of attorney granted by a person ("P");

(b)another person ("D") does an act in connection with the care, treatment or personal welfare of P;

(c)D does the act with the consent of a person ("A") purporting to be an attorney under a lasting power of attorney granted by P; and

(d)either A is not such an attorney, or it is not within the scope of A's authority to consent in relation to the matter in question.

(2) If-

(a)before doing the act, D takes reasonable steps to establish whether-

(i)A is an attorney under a lasting power of attorney granted by P, and

(ii)it is within the scope of A's authority to consent in relation to the matter in question, and

(b)when doing the act, D reasonably believes that A is such an attorney and has authority to consent in relation to the matter,

D does not incur any liability in relation to the act because A was not such an attorney or, as the case may be, did not have such authority.

Powers of the court

Powers of court as to lasting powers of attorney

110.-(1) This section applies if-

(a)a person has executed an instrument with a view to creating a lasting power of attorney (a "relevant instrument") or purported to execute a relevant instrument; or

(b)an instrument has been registered as a lasting power of attorney.

(2) The court may determine any question relating to-

(a)whether one or more of the requirements for the creation of a lasting power of attorney have been met;

(b)whether the instrument or power has been revoked or has otherwise come to an end.

(3) Subsection (4) applies if the court is satisfied-

(a)that fraud or undue pressure was used to induce a person to create a lasting power of attorney or execute a relevant instrument;

(b)that an attorney under a lasting power of attorney has behaved, or is behaving, in a way that contravenes the attorney's authority or is not in the donor's best interests; or

(c)that a person appointed as attorney or replacement attorney by a lasting power of attorney or relevant instrument proposes to behave as attorney in a way that would contravene the attorney's authority or would not be in the donor's best interests.

(4) Where this subsection applies, the court may-

(a)direct that an instrument purporting to create the lasting power of attorney is not to be registered; or

(b)if the donor lacks capacity to revoke the instrument or the lasting power of attorney-

(i)revoke the instrument or power; or

(ii)terminate the appointment of a person appointed as attorney or replacement attorney by the instrument or power.

Powers of court as to operation of lasting powers of attorney

111.-(1) The court may determine any question as to the meaning or effect of a lasting power of attorney or an instrument purporting to create one.

(2) The court may-

(a)give directions with respect to decisions-

(i)which an attorney under a lasting power of attorney has authority to make; and

(ii)which the donor lacks capacity to make;

(b)give any consent or authorisation to act which an attorney under a lasting power of attorney would have to obtain from the donor if the donor had capacity to give it.

(3) The court may, if the donor of a lasting power of attorney lacks capacity to do so-

(a)give directions to an attorney with respect to the rendering by the attorney of reports or accounts and the production of records kept by the attorney for that purpose;

(b)require an attorney ("A") to supply information or produce documents or things in A's possession as attorney;

(c)give directions with respect to the remuneration or expenses of an attorney;

(d)relieve an attorney wholly or partly from any liability which the attorney has or may have incurred on account of a breach of a duty as attorney.

(4) The court may authorise the making of gifts, under a lasting power of attorney, which are not within section 100(2) (permitted gifts).

PART 6HIGH COURT POWERS: DECISIONS AND DEPUTIES

Declarations

The court's power to make declarations

112.-(1) The court may make declarations in relation to a person who is 16 or over as to-

(a)whether the person has or lacks capacity to make a decision specified in the declaration;

(b)whether the person has or lacks capacity to make decisions on a matter described in the declaration;

(c)the lawfulness or otherwise of any act done, or yet to be done, in relation to the person.

(2) In this section "act" includes an omission and a course of conduct.

Decisions and deputies

The court's powers to make decisions and appoint deputies: general

113.-(1) This section applies if-

(a)a person ("P") lacks capacity in relation to a matter or matters concerning-

(i)P's care, treatment or personal welfare, or

(ii)P's property and affairs; and

(b)P is 16 or over or section 115(3) applies.

(2) The court may-

(a)by making an order, make on P's behalf a decision or decisions that P lacks capacity to make in relation to the matter or matters; or

(b)appoint a person (a "deputy") to make decisions on P's behalf in relation to the matter or matters (see further sections 116 and 117).

(3) The powers of the court under this section are subject to the provisions of this Act and, in particular, to sections 1, 2, 5 and 7 (principles, best interests).

(4) When deciding whether it would be in P's best interests to appoint a deputy, the court must (in addition to complying with section 7) have regard to the principles that-

(a)a decision by the court is to be preferred to the appointment of a deputy to make a decision; and

(b)the powers conferred on a deputy should be as limited in scope and duration as is practicable in the circumstances.

(5) The court may-

(a)make such further orders,

(b)give such directions, and

(c)confer on a deputy such powers or impose on a deputy such duties,

as it considers appropriate for giving effect to, or otherwise in connection with, an order or appointment made by it under subsection (2).

(6) The court may make an order or appointment under any provision of this section, or give a direction under subsection (5), on such terms as it considers are in P's best interests (even where no application is before the court for an order, appointment or direction on those terms).

(7) An order of the court may be varied or discharged by a subsequent order.

(8) The court may, in particular, revoke the appointment of a deputy or vary the powers conferred on a deputy if it is satisfied that the deputy-

(a)has behaved, or is behaving, in a way that contravenes the authority conferred on the deputy by the court or is not in P's best interests; or

(b)proposes to behave in a way that would contravene that authority or would not be in P's best interests.

Section 113 powers: care, treatment and personal welfare

114.-(1) The powers under section 113 as respects P's care, treatment and personal welfare extend in particular to-

(a)deciding where P is to live;

(b)deciding what contact, if any, P is to have with any specified persons;

(c)making an order prohibiting a specified person from having contact with P;

(d)giving or refusing consent to the provision of a treatment by a person providing health care for P;

(e)giving a direction that a person responsible for P's health care allow a different person to take over that responsibility.

(2) In this section "specified" means specified by the court.

(3) Subsection (1) is subject to section 117 (restrictions on deputies).

Section 113 powers: property and affairs

115.-(1) The powers under section 113 as respects P's property and affairs extend in particular to-

(a)the control and management of P's property;

(b)the sale, exchange, charging, gift or other disposition of P's property;

(c)the acquisition of property in P's name or on P's behalf;

(d)the carrying on, on P's behalf, of any profession, trade or business;

(e)the taking of a decision which will have the effect of dissolving a partnership of which P is a member;

(f)the carrying out of any contract entered into by P;

(g)the discharge of P's debts and of any of P's obligations, whether legally enforceable or not;

(h)the settlement of any of P's property, whether for P's benefit or for the benefit of others;

(i)the execution for P of a will;

(j)the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise;

(k)the conduct of legal proceedings in P's name or on P's behalf.

(2) No will may be executed by virtue of subsection (1)(i) at a time when P is under 18.

(3) The powers under section 113 as respects any matter concerning P's property and affairs (except the power to execute a will for P) may be exercised even if P is under 16 if the court considers it likely that P will still lack capacity to make decisions in respect of that matter when P reaches 18.

(4) Schedule 5 supplements the provisions of this section.

(5) Subsection (1) is subject to section 117 (restrictions on deputies).

Appointment of deputies

116.-(1) A deputy appointed by the court must be-

(a)an individual who is 18 or over; or

(b)as respects powers concerning property and affairs, either such an individual or a trust corporation.

(2) The court may appoint an individual by appointing the holder for the time being of a specified office or position.

(3) A person may be appointed as a deputy only with that person's consent.

(4) The court may appoint two or more deputies to act-

(a)jointly;

(b)jointly and severally; or

(c)jointly in respect of some matters and jointly and severally in respect of others.

(5) When appointing a deputy or deputies, the court may at the same time appoint one or more other persons to succeed the existing deputy or those deputies-

(a)in specified circumstances or on the happening of specified events;

(b)for a specified period.

(6) A deputy is to be treated as P's agent in relation to anything done or decided by the deputy within the scope of the deputy's appointment and in accordance with this Act.

(7) The deputy is entitled-

(a)to be reimbursed out of P's property for the deputy's reasonable expenses in discharging the deputy's functions; and

(b)if the court so directs when appointing the deputy, to remuneration out of P's property for discharging them.

(8) The court may confer on a deputy powers to-

(a)take possession or control of all or any specified part of P's property;

(b)exercise all or any specified powers in respect of it, including such powers of investment as the court may determine.

(9) The court may require a deputy-

(a)to give to the Public Guardian such security as the court considers appropriate for the proper performance of the deputy's functions; and

(b)to submit to the Public Guardian such reports at such times or at such intervals as the court may direct.

(10) In this section "specified" means specified by the court.

Restrictions on deputies

117.-(1) A deputy does not have power to make a decision on behalf of P in relation to a matter unless P lacks capacity, or the deputy reasonably believes that P lacks capacity, in relation to the matter.

(2) The authority conferred on a deputy is subject to the provisions of this Act and, in particular, sections 1, 2, 5 and 7 (principles, best interests).

(3) Nothing in section 113 or 114 permits a deputy to be given power-

(a)to prohibit a specified person from having contact with P;

(b)to direct a person responsible for P's health care to allow a different person to take over that responsibility.

(4) Nothing in section 113 or 115 permits a deputy to be given powers with respect to-

(a)the settlement of any of P's property, whether for P's benefit or for the benefit of others;

(b)the execution for P of a will; or

(c)the exercise of any power (including a power to consent) vested in P whether beneficially or as trustee or otherwise.

(5)A deputy may not be given power to make a decision on behalf of P which is inconsistent with-

(a)a decision that is made in accordance with this Act by an attorney under a lasting power of attorney granted by P, and is within the scope of the attorney's authority; or

(b)a decision that is made in accordance with the Enduring Powers of Attorney (Northern Ireland) Order 1987 by an attorney under an enduring power of attorney granted by P, and is within the scope of the attorney's authority.

(6) A deputy may not refuse consent to the provision of life-sustaining treatment to P.

(7) A deputy may not deprive P of his or her liberty or authorise another person to deprive P of his or her liberty.

(8) A deputy may not do, or authorise another person to do, an act restraining P unless in doing so the deputy is acting within the scope of an authority expressly conferred on the deputy by the court and the deputy reasonably believes-

(a)that P lacks capacity in relation to the matter in question;

(b)that there is a risk of harm to P if the deputy does not do or (as the case may be) authorise the act restraining P; and

(c)that doing or authorising that act is a proportionate response to-

(i)the likelihood of harm to P; and

(ii)the seriousness of the harm concerned.

(9) In this section an "act restraining P" means an act (other than a deprivation of P's liberty) which-

(a)is intended to restrict P's liberty of movement, whether or not P resists; or

(b)is a use of force or a threat to use force and is done with the intention of securing the doing of an act which P resists.

(10) A deputy may not give consent to psychosurgery in respect of P.

(11) The Department may by regulations amend subsection (10) so as to extend the descriptions of treatment to which a deputy may not give consent.

Reliance on authority of deputy in relation to treatment etc

118.-(1) This section applies if-

(a)an order has been made under section 113(2)(b) appointing a deputy for a person ("P");

(b)another person ("D") does an act in connection with the care, treatment or personal welfare of P;

(c)D does the act with the consent of a person ("C") purporting to be P's deputy; and

(d)either C is not P's deputy, or it is not within the scope of C's authority to consent in relation to the matter in question.

(2) If-

(a)before doing the act, D takes reasonable steps to establish whether-

(i)C is P's deputy, and

(ii)it is within the scope of C's authority to consent in relation to the matter in question, and

(b)when doing the act, D reasonably believes that C is P's deputy and has authority to consent in relation to the matter,

D does not incur any liability in relation to the act because C was not P's deputy or (as the case may be) did not have such authority.

Ancillary powers of the court

Interim orders and directions

119.  The court may, pending the determination of an application to it in relation to a person ("P"), make an order or give directions in respect of any matter if-

(a)there is reason to believe that P lacks capacity in relation to the matter;

(b)the matter is one to which the court's powers under this Part extend; and

(c)it is in P's best interests to make the order, or give the directions, without delay.

Power to call for reports

120.-(1) This section applies where, in proceedings brought in respect of a person ("P") under this Part, the court is considering a question relating to P.

(2) The court may require a report to be made to it by the Public Guardian or by a Court Visitor.

(3) The court may require an HSC trust, the Regional Board or RQIA to arrange for a report to be made-

(a)by one of its officers or employees; or

(b)by such other person (other than the Public Guardian or a Court Visitor) as that body considers appropriate.

(4) The report must deal with such matters relating to P as the court may direct.

(5) Rules of court may specify matters which, unless the court directs otherwise, must also be dealt with in the report.

(6) The report may be made in writing or orally, as the court may direct.

Powers of Public Guardian or Court Visitor in respect of reports under section 120(2)

121.-(1) This section applies where, in proceedings brought in respect of a person ("P") under this Part, the court imposes a requirement to make a report under section 120(2).

(2) If the Public Guardian or a Court Visitor is making a visit in the course of complying with the requirement, he or she may interview P in private.

(3) If a Court Visitor who is a Special Visitor is making a visit in the course of complying with the requirement, he or she may if the court so directs carry out in private a medical, psychiatric or psychological examination of P's capacity and condition.

(4) For the purpose of complying with the requirement, the Public Guardian or a Court Visitor may at all reasonable times require the production of, examine and take copies of-

(a)any health record (as defined by section 306),

(b)any relevant record, or

(c)any court record,

so far as the record relates to P.

(5) But if P has capacity in relation to whether the power under subsection (4) should be exercised, the power may be exercised only with P's consent.

(6) In this section-

"court record" means documentation held by the court relating to the proceedings mentioned in subsection (1);

"relevant record" means a record relating to P's care, treatment or personal welfare which is a record of or held by-

Practice and procedure

Applications to the court

122.-(1) No leave is required for an application to the court for the exercise of any of its powers under this Part-

(a)by a person who lacks, or is alleged to lack, capacity;

(b)if such a person is under 18, by anyone with parental responsibility for that person;

(c)where the application relates to a lasting power of attorney or enduring power of attorney and the application is made by the donor or any person who is an attorney under the power;

(d)by a deputy appointed by the court for a person to whom the application relates;

(e)by a person named in an existing order of the court, if the application relates to the order; or

(f)where the application is made by virtue of section 129 (proceedings following inquiry by Public Guardian).

(2) But, subject to rules of court and to paragraph 21(2) of Schedule 9 (declarations relating to private international law), leave is required for any other application to the court for the exercise of any of its powers under this Act.

(3) In deciding whether to grant leave the court must (in particular) have regard to-

(a)the applicant's connection with the person to whom the application relates;

(b)the reasons for the application;

(c)the benefit to the person to whom the application relates of a proposed order or directions; and

(d)whether the benefit can be achieved in any other way.

Duty to notify Attorney General

123.-(1) A person who makes an application to the court under this Part must notify the Attorney General of that fact.

(2) The notification must be made in accordance with rules of court.

(3) The Attorney General may intervene in the proceedings on the application in such way as the Attorney General considers appropriate.

Rules of court

124.-(1) In this section "proceedings" means proceedings before the court with respect to a person who lacks, or is alleged to lack, capacity ("P").

(2) Rules of court may make provision as to the conduct of such proceedings including provision-

(a)as to the carrying out of preliminary or incidental inquiries;

(b)as to the way and form in which proceedings are to be commenced and carried on;

(c)as to the persons by whom proceedings may be commenced and carried on;

(d)as to the persons who are to be entitled to be notified of, to attend, or to take part in proceedings;

(e)as to the evidence which may be authorised or required to be given in proceedings and the way (whether on oath or otherwise and whether orally or in writing) in which it is to be given;

(f)as to the administration of oaths and taking of affidavits for the purposes of proceedings;

(g)for the allocation, in specified circumstances, of any specified description of proceedings to a specified judge or to specified descriptions of judges;

(h)for the exercise of the jurisdiction of the court, in specified circumstances, by its officers or other staff;

(i)for enabling the court to appoint a suitable person (who may, with his or her consent, be the Official Solicitor) to act in the name of, or on behalf of, or to represent P;

(j)for enabling an application to the court to be disposed of without a hearing;

(k)as to authorising or requiring-

(i)the attendance and examination of persons who lack, or are alleged to lack capacity;

(ii)the provision of information; and

(iii)the production of documents;

(l)for enabling the court to proceed with, or with any part of, a hearing in the absence of P;

(m)for enabling or requiring the proceedings or any part of them to be conducted in private and for enabling the court to determine who is to be admitted when the court sits in private and to exclude specified persons when it sits in public;

(n)as to what may be received as evidence (whether or not admissible apart from the rules) and the way in which it is to be presented;

(o)for the enforcement of orders made and directions given in the proceedings;

(p)as to-

(i)the making of orders for the payment of costs to or by persons attending, as well as persons taking part in, proceedings; and

(ii)the way in which and funds out of which any such costs are to be paid;

(q)the way in which, and funds from which, fees are to be paid;

(r)as to the termination of proceedings, whether on the death or recovery of P or otherwise, and the exercise, pending the termination of the proceedings, of powers exercisable under this Part in relation to P's-

(i)care, treatment or personal welfare; or

(ii)property or affairs;

(s)for charging fees and costs upon P's estate;

(t)for the payment of fees and costs within a specified time of P's death or the conclusion of the proceedings.

(3) Rules of court may also make provision as to appeals from decisions of the court in such proceedings, including provision-

(a)that where a decision of the court is made by a person exercising the jurisdiction of the court by virtue of rules made under subsection (2)(h), an appeal from that decision lies to a judge of the court of a specified description and not to the Court of Appeal;

(b)that, in specified cases, an appeal from a decision of the court may not be made without leave;

(c)as to the person or persons entitled to grant leave to appeal;

(d)as to any requirements to be met before leave is granted;

(e)that where a judge of the court makes a decision on an appeal, no appeal may be made to the Court of Appeal from that decision unless the Court of Appeal considers that-

(i)the appeal would raise an important point of principle or practice; or

(ii)there is some other compelling reason for the Court of Appeal to hear it;

(f)as to any considerations to be taken into account in relation to granting or refusing leave to appeal.

(4) A charge, created by virtue of subsection (2)(s), upon the estate of a person is not to cause any interest of that person in any property to fail or determine or to be prevented from recommencing.

(5) In this section "specified" means specified by the rules.

PART 7PUBLIC GUARDIAN AND COURT VISITORS

Public Guardian

The Public Guardian

125.-(1) The Department of Justice must appoint an officer, to be known as the Public Guardian.

(2) The Department of Justice may pay to the Public Guardian such salary and allowances as it may determine.

(3) A determination under subsection (2) requires the approval of the Department of Finance.

(4) The Department of Justice may, after consulting the Public Guardian-

(a)provide the Public Guardian with such officers and staff, or

(b)enter into such contracts with other persons for the provision (by them or their sub-contractors) of officers, staff or services,

as it considers necessary for the proper performance of the Public Guardian's functions.

(5) Any functions of the Public Guardian may, to the extent authorised by the Public Guardian, be performed by any of the Public Guardian's officers.

Functions of the Public Guardian

126.-(1) The Public Guardian has the following functions-

(a)establishing and maintaining a register of lasting powers of attorney;

(b)establishing and maintaining a register of orders appointing deputies;

(c)supervising deputies appointed by the court;

(d)directing a Court Visitor to visit-

(i)a person who is an attorney under a lasting power of attorney,

(ii)a deputy appointed by the court, or

(iii)a person who proposes to grant or has granted a lasting power of attorney or for whom a deputy is appointed ("P"),

and to make a report to the Public Guardian on such matters as the Public Guardian may direct;

(e)receiving security which the court requires a person to give for the performance of functions;

(f)receiving reports from persons who are attorneys under lasting powers of attorney and deputies appointed by the court;

(g)reporting to the court on such matters relating to proceedings under this Act (except proceedings under Part 10) as the court requires;

(h)dealing with representations (including complaints) about the way in which powers of an attorney under a lasting power of attorney or of a deputy appointed by the court are being exercised;

(i)publishing (in any way the Public Guardian considers appropriate) any information the Public Guardian considers appropriate about the performance of the Public Guardian's functions.

(2) The functions conferred by subsection (1)(c), (d) and (h) may be performed in co-operation with any other person who has functions in relation to the care or treatment of P.

(3) The Department of Justice may by regulations make provision-

(a)conferring on the Public Guardian other functions in connection with this Act;

(b)in connection with the performance by the Public Guardian of his or her functions.

(4) Regulations made under subsection (3)(b) may in particular make provision as to-

(a)the giving of security by deputies appointed by the court and the enforcement and discharge of security so given;

(b)the way in which, and funds into which, fees which may be charged by the Public Guardian under section 116 of the Judicature (Northern Ireland) Act 1978 are to be paid;

(c)the making of reports to the Public Guardian by deputies appointed by the court and others who are directed by the court to carry out any transaction for a person who lacks capacity.

Further powers of the Public Guardian

127.-(1) The powers under subsections (2) and (3) may be exercised for the purpose of enabling the Public Guardian to carry out his or her functions in relation to a person ("P")-

(a)who proposes to grant or has granted a lasting power of attorney; or

(b)for whom a deputy is appointed.

(2) The Public Guardian may visit P and interview P in private.

(3) The Public Guardian may at all reasonable times require the production of, examine and take copies of-

(a)any health record (as defined by section 306), or

(b)any relevant record,

so far as the record relates to P.

(4) But if P has capacity in relation to whether the power under subsection (3) should be exercised, the power may be exercised only with P's consent.

(5) In this section "relevant record" means a record relating to P's care, treatment or personal welfare which is a record of or held by-

(a)an HSC trust or its employees or agents;

(b)the Regional Board;

(c)RQIA;

(d)a Northern Ireland department or its employees or agents;

(e)the managing authority of an independent hospital; or

(f)the managing authority of a care home.

Duty to notify the Public Guardian

128.-(1) Where a relevant authority is satisfied-

(a)that a person with whom the authority is concerned lacks capacity in relation to a matter or matters relating to that person's care, treatment, personal welfare or property and affairs,

(b)that any of the powers of the court under section 113 ought to be exercised with respect to that matter or matters, and

(c)that arrangements in that behalf have not been made and are not being made,

it is the duty of that relevant authority to notify the Public Guardian of the situation.

(2) In this section a "relevant authority" means-

(a)an HSC trust;

(b)the Regional Board;

(c)RQIA;

(d)the managing authority of an independent hospital;

(e)the managing authority of a care home.

(3) In this section "a person with whom the authority is concerned" means-

(a)in relation to an HSC trust, a person within the area of the trust;

(b)in relation to the Regional Board, any person;

(c)in relation to RQIA, any person;

(d)in relation to the managing authority of an independent hospital or of a care home, an in-patient or resident in the hospital or care home.

Notifications under section 128: procedure and effect

129.-(1) A notification under section 128 must be made within such time and in such form as rules of court may specify.

(2) Where a notification is made under section 128 in relation to any person ("P"), the body or person making the notification must, where practicable, inform P's nominated person.

(3) The Public Guardian, on receipt of a notification in respect of a person under section 128-

(a)must consider whether the Public Guardian should make inquiries into the person's case; and

(b)if the Public Guardian considers that he or she should make inquiries, must seek the leave of the court to make them and, if leave is granted, must make such inquiries as he or she considers appropriate.

(4) Where inquiries have been made under subsection (3) the Public Guardian may, if he or she considers it appropriate to do so, arrange for the bringing of proceedings before the court under section 113.

(5) Inquiries under subsection (3) must be made within the period specified by the court.

Court Visitors

Court Visitors

130.-(1) A Court Visitor is a person who is appointed by the Department of Justice to-

(a)a panel of Special Visitors; or

(b)a panel of General Visitors.

(2) A person may be appointed to a panel of Special Visitors only if-

(a)the person is a medical practitioner or appears to the Department of Justice to have other suitable qualifications or training; and

(b)the person appears to the Department of Justice to have special knowledge of and experience in relation to persons with impairment of, or disturbance in the functioning of, the mind or brain.

(3) A General Visitor need not have a medical qualification.

(4) A Court Visitor-

(a)may be appointed for such term and subject to such conditions, and

(b)may be paid such remuneration and allowances,

as the Department of Justice may determine.

Powers of Court Visitors

131.-(1) The powers under subsection (2) and (3) may be exercised for the purpose of enabling a Court Visitor to carry out his or her functions under this Act in relation to a person who lacks capacity.

(2) The Court Visitor may visit the person and interview the person in private.

(3) The Court Visitor may at all reasonable times require the production of, examine and take copies of-

(a)any health record (as defined by section 306), or

(b)any relevant record,

so far as the record relates to the person.

(4) But if the person has capacity in relation to whether the power under subsection (3) should be exercised, the power may be exercised only with his or her consent.

(5) In this section "relevant record" means a record relating to the person's care, treatment or personal welfare which is a record of or held by-

(a)an HSC trust;

(b)the Regional Board;

(c)RQIA;

(d)a Northern Ireland department or its employees or agents;

(e)the managing authority of an independent hospital; or

(f)the managing authority of a care home.

PART 8RESEARCH

Approved research projects

Research

132.-(1) Intrusive research carried out on, or in relation to, a person who is 16 or over and lacks capacity to consent to it is unlawful unless it is carried out-

(a)as part of an approved research project (see subsection (3)); and

(b)in accordance with sections 135 to 137.

(2) Research is "intrusive" if it is of a kind that would be unlawful if it were carried out-

(a)on or in relation to a person who had capacity to consent to it; but

(b)without that person's consent.

(3) In this section "approved research project" means a research project which is for the time being approved for the purposes of this Part by the appropriate body in accordance with section 134.

(4) In this Part "appropriate body", in relation to a research project, means the person, committee or other body which is specified in regulations made for the purposes of this subsection as the appropriate body in relation to a project of the kind in question.

(5) Section 133 supplements this section.

Section 132: exception for clinical trials

133.-(1) This section applies for the purposes of section 132.

(2) A clinical trial which is subject to the provisions of clinical trials regulations is not to be treated as research.

(3) In subsection (2) "clinical trials regulations" means-

(a)the Medicines for Human Use (Clinical Trials) Regulations 2004 and any other regulations replacing those regulations or amending them; and

(b)any other regulations relating to clinical trials that are designated by regulations made for the purposes of this subsection.

Approval of research projects

134.-(1) The appropriate body may approve a research project for the purposes of this Part only if it is satisfied that the following requirements will be met in relation to research carried out as part of the project on, or in relation to, a person who is 16 or over and lacks capacity to consent to taking part in the project ("P").

(2) The research must be connected with-

(a)an impairing condition affecting P; or

(b)its treatment.

(3) There must be reasonable grounds for believing that research of comparable effectiveness cannot be carried out if the project has to be confined to, or relate only to, persons who have capacity to consent to taking part in it.

(4) The research must-

(a)have the potential to benefit P without imposing on P a burden that is disproportionate to the potential benefit to P; or

(b)be intended to provide knowledge of the causes or treatment of, or of the care of persons affected by, the same or a similar condition.

(5) If the research falls within paragraph (b) of subsection (4) but not within paragraph (a), there must be reasonable grounds for believing-

(a)that the risk to P from taking part in the project is likely to be negligible; and

(b)that nothing done to, or in relation to, P as part of the project will-

(i)interfere with P's freedom of action or privacy in a significant way; or

(ii)be unduly invasive or restrictive.

(6) Without prejudice to subsection (5), there must be reasonable grounds for believing that no serious intervention will be carried out in respect of P as part of the project unless the intervention is one that could lawfully be carried out in respect of P if it were not part of the project (for example, because the conditions of Part 2 are met).

(7) There must be reasonable arrangements in place for ensuring that the requirements of sections 135 to 137 will be met.

(8) In this section-

"impairing condition" means a condition which is (or may be) attributable to, or which causes or contributes to (or may cause or contribute to), an impairment of, or a disturbance in the functioning of, the mind or brain;

"serious intervention" is to be read in accordance with section 63.

Requirement to consult nominated person, carer etc

135.-(1) This section applies if a person ("R")-

(a)is conducting a research project approved under section 134; and

(b)wishes to carry out research, as part of the project, on or in relation to a person ("P") who is 16 or over and lacks capacity to consent to taking part in the project.

(2) R must take reasonable steps to identify a person who-

(a)otherwise than in a professional capacity, is engaged in caring for P or is interested in P's welfare; and

(b)is prepared to be consulted by R under this section.

(3) If R is unable to identify such a person R must, in accordance with guidance issued by the Department, appoint a person who-

(a)is prepared to be consulted by R under this section; and

(b)has no connection with the project.

(4) R must provide the person identified under subsection (2), or appointed under subsection (3), with information about the project and ask that person-

(a)for advice as to whether P should take part in the project; and

(b)what, in that person's opinion, P's wishes and feelings about taking part in the project would be likely to be if P had capacity in relation to the matter.

(5) If, at any time, the person consulted advises R that in that person's opinion P's wishes and feelings would be likely to lead P to decline to take part in the project (or to wish to withdraw from it) if P had capacity in relation to the matter, R must ensure-

(a)if P is not already taking part in the project, that P does not take part in it;

(b)if P is taking part in the project, that P is withdrawn from it.

(6) Subsection (5)(b) does not require treatment that P has been receiving as part of the project to be discontinued if the treatment can lawfully be carried out despite P having withdrawn from the project.

(7) In subsection (2)(a) "in a professional capacity" means under a contract of employment, under any other contract with any person, or as a volunteer for any organisation.

(8) The fact that a person within subsection (2)(a) is-

(a)an attorney under a lasting power of attorney, or an enduring power of attorney, granted by P,

(b)P's deputy, or

(c)P's nominated person,

does not prevent that person from being the person consulted under this section.

(9) This section is subject to section 136 (urgent treatment).

Section 135: exception for urgent treatment

136.-(1) This section applies if-

(a)section 135 applies;

(b)treatment is being, or is about to be, provided for P as a matter of urgency; and

(c)R considers that, having regard to the nature of the research and the particular circumstances of the case-

(i)it is also necessary to take action for the purposes of the research as a matter of urgency; but

(ii)it is not practicable to consult under section 135.

(2) R may take the action if-

(a)R has the agreement of a medical practitioner who is not involved in the organisation or conduct of the research project; or

(b)where it is not practicable in the time available to obtain that agreement, R acts in accordance with a procedure approved by the appropriate body at the time when the research project was approved under section 134.

(3) But R may not continue to act in reliance on subsection (2) if R has reasonable grounds for believing that it is no longer necessary to take the action as a matter of urgency.

Additional safeguards

137.-(1) This section applies in relation to a person ("P") who is 16 or over and is taking part in a research project approved under section 134 even though P lacks capacity to consent to taking part.

(2) Nothing may be done to, or in relation to, P in the course of the research-

(a)to which P appears to object (whether by showing signs of resistance or otherwise) except where what is being done is intended to protect P from harm or to reduce or prevent pain or discomfort; or

(b)which is the carrying out or continuation of treatment of P and would be contrary to-

(i)an effective advance decision to refuse treatment which has been made by P, or

(ii)any other form of statement made by P and not subsequently withdrawn,

of which the person conducting the research project ("R") is aware.

(3) The interests of P must be assumed to outweigh those of science and society.

(4) If P indicates (in any way) a wish to be withdrawn from the project P must be withdrawn without delay.

(5) P must be withdrawn from the project, without delay, if at any time R has reasonable grounds for believing that any requirement set out in section 134(2) to (7) is no longer met in relation to research being carried out on, or in relation to, P.

(6) Subsections (4) and (5) do not require treatment that P has been receiving as part of the project to be discontinued if the treatment can lawfully be carried out despite P having withdrawn from the project.

(7) In this section-

(a)"an effective advance decision to refuse treatment" means a decision which, under the common law relating to advance decisions, has the same effect as if at the material time P-

(i)refused consent to the treatment's being carried out or continued; and

(ii)had capacity to refuse that consent; and

(b)"the material time" means the time when the question arises whether the treatment should be carried out or continued.

Transitional cases

Loss of capacity during research project: transitional cases

138.-(1) This section applies where a person who is 16 or over ("P")-

(a)consented to take part in a research project begun before the coming into operation of section 132; and

(b)before the conclusion of the project, loses capacity to consent to continue to take part in it.

(2) Regulations may provide that, despite P's loss of capacity, research of a prescribed kind may be carried out on, or in relation to, P if-

(a)the project satisfies prescribed requirements;

(b)any information or material relating to P which is used in the research is of a prescribed description and was obtained before P's loss of capacity; and

(c)the person conducting the project takes in relation to P such steps as may be prescribed for the purpose of protecting P.

(3) The regulations may in particular-

(a)make provision about when, for the purposes of the regulations, a project is to be treated as having begun;

(b)include provision similar to any made by sections 134 to 137.

PART 9POWER OF POLICE TO REMOVE PERSON TO PLACE OF SAFETY

Power of police to remove person from public place to place of safety

Power of police to remove person from public place to place of safety

139.-(1) If-

(a)a constable finds in a public place a person who appears to the constable to be in immediate need of care or control, and

(b)the constable reasonably believes that the conditions in subsection (2) are met,

the constable may remove that person to a place of safety.

(2) Those conditions are that-

(a)failure to remove the person from the public place would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(b)removing the person to a place of safety is a proportionate response to the likelihood and seriousness of the harm concerned;

(c)because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should be taken to a place of safety; and

(d)removing the person to the place of safety would be in the person's best interests.

(3) The powers conferred by this Part are subject to section 157 (principles).

(4) "Place of safety" and "public place" are defined for the purposes of this Part by section 160.

Information to be given on removal

140.-(1) The removal of a person ("R") from a public place under section 139 is not lawful unless R is informed-

(a)before or at the time of being taken from the public place, or

(b)as soon as practicable after that time,

that R is to be (or is being) removed to a place of safety under section 139.

(2) If R arrives at the place of safety before it is practicable to give R that information, subsection (1) is to be read as requiring R to be informed as soon as practicable that R has been removed to a place of safety under section 139.

(3) Nothing in this section is to be taken to require R to be informed if it was not reasonably practicable to inform R because R escaped before the information could be given.

(4) In consequence of this section, Article 30 of PACE (information to be given on arrest) does not apply in relation to the removal of a person from a public place under section 139.

Search of person on exercise of power to remove

141.-(1) Subsection (2) applies where a person in a public place is informed that he or she is to be (or is being) removed to a place of safety under section 139.

(2) The person is to be regarded for the purposes of Article 34 of PACE (search upon arrest) as having been arrested at the time when he or she was so informed.

(3) Where-

(a)a person ("R") is removed from a public place under section 139, and

(b)it is not practicable to inform R as mentioned in subsection (1) before R is removed from the public place,

R is to be regarded for the purposes of Article 34 of PACE as having been arrested at the time when it was decided to remove R from that place to a place of safety.

(4) Article 34 of PACE applies by virtue of this section as if-

(a)paragraphs (2)(a)(ii) and (b), (6) and (7) were omitted;

(b)in paragraph (3) the reference to evidence were omitted.

Powers of police to detain person removed from public place

Power of police to detain in hospital a person removed from a public place

142.-(1) This section applies where a person is taken to a hospital under section 139.

(2) The person may be detained under this section in the hospital by a constable for the purpose of enabling the person to be examined by a medical practitioner and interviewed by an approved social worker, if the constable reasonably believes that the detention conditions are met (see section 144).

(3) If at any time while the person is detained in a hospital under this section it appears to the constable detaining the person that the detention conditions are no longer met, the person must immediately be discharged from detention under this section.

(4) Subsection (3) does not apply if the transfer conditions in section 145 are met and the person is taken to another place of safety under that section.

(5) See also section 146 (maximum period of detention under this Part).

Power to detain in police station a person removed from a public place

143.-(1) This section applies where a person is taken to a police station under section 139.

(2) If a custody officer reasonably believes that the detention conditions are met (see section 144), the person may be detained under this section in the police station-

(a)for the purpose of enabling the person to be examined by a medical practitioner and interviewed by an approved social worker;

(b)for the purpose of preventing physical or psychological harm to that person or other persons while any necessary arrangements are made for the person's care or treatment elsewhere.

(3) If at any time while the person is detained under this section it appears to a custody officer that the detention conditions are no longer met, the person must immediately be discharged from detention under this section.

(4) Subsection (3) does not apply if the transfer conditions in section 145 are met and the person is taken to another place of safety under that section.

(5) See also section 146 (maximum period of detention under this Part).

Sections 142 and 143: the detention conditions

144.-(1) This section applies for the purposes of sections 142 and 143.

(2) The detention conditions are that-

(a)failure to detain the person for the permitted purposes would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(b)detaining the person in the place of safety for those purposes is a proportionate response to the likelihood and seriousness of the harm concerned;

(c)because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should remain in the place of safety; and

(d)detention in the place of safety for those purposes is in the person's best interests.

(3) In this section-

"the place of safety" means the hospital or police station to which the person mentioned in section 142(1) or 143(1) has been taken;

"the permitted purposes" means-

Transfer from one place of safety to another

145.-(1) At any time while a person is detained in a place of safety under section 142 or 143, the person may be taken by a constable to another place of safety ("the new place of safety") if the constable reasonably believes that the transfer conditions are met.

(2) The transfer conditions are that-

(a)there is appropriate care or treatment available in the new place of safety which is not available in the place where the person is being detained;

(b)discharging the person from detention rather than taking him or her to the new place of safety would create a risk of serious physical or psychological harm to the person or of serious physical harm to other persons;

(c)taking the person to the new place of safety (and not discharging him or her from detention) is a proportionate response to the likelihood and seriousness of the harm concerned;

(d)because of an impairment of or disturbance in the functioning of the mind or brain (temporary or permanent, and however caused), the person is unable to make a decision for himself or herself as to whether he or she should be taken to the new place of safety; and

(e)taking the person to the new place of safety is in the person's best interests.

(3) Where a person is taken to a hospital under this section, section 142 applies as it applies where a person is taken to a hospital under section 139.

(4) Where a person is taken to a police station under this section, section 143 applies as it applies where a person is taken to a police station under section 139.

(5) In this section "appropriate care or treatment" means care or treatment which is appropriate in the person's case.

Maximum period of detention under Part 9

146.-(1) A person removed from a public place under section 139 may not be detained under any provision of this Part after the end of the period of 24 hours beginning with the time of that removal.

(2) The Department of Justice may by regulations amend subsection (1) so as to alter the period mentioned there.

Duties and powers of police where person removed to place of safety

Duty to inform certain persons where power of removal or transfer used

147.-(1) This section applies where a constable takes a person ("R") to a place of safety under section 139 or 145.

(2) The constable must ensure that, as soon as practicable after R arrives at the place of safety, the required information is given to⁠-

(a)the HSC trust in whose area that place of safety is situated;

(b)the appropriate person; and

(c)if the appropriate person does not live with R and it is practicable to give the information to a relevant person who lives with R, such a person.

(3)  But if⁠-

(a)it is not practicable to give the required information to the appropriate person, and

(b)it is practicable to give the required information to a relevant person,

subsection (2) has effect as if the reference in paragraph (b) to the appropriate person were to a relevant person.

(4) In this section⁠-

"the appropriate person" means-

"relevant person" means a person who is 16 or over and is-

"the required information" has the meaning given by section 148.

Section 147: meaning of "the required information" etc

148.-(1) This section supplements section 147.

(2) "The required information" means-

(a)the fact that R has been taken to a place of safety under section 139 or 145;

(b)R's name and address, if known;

(c)the address of the place of safety to which R was taken;

(d)the date and time at which R-

(i)was removed from the public place (where the notification relates to a removal under section 139); or

(ii)was taken from the place of safety from which he or she was transferred (where the notification relates to a transfer under section 145);

(e)the circumstances giving rise to R's removal or transfer; and

(f)if the place of safety to which R was taken is a police station, the reason why R was taken there.

(3) Section 147 applies instead of Article 10 of the Criminal Justice (Children) (Northern Ireland) Order 1998 in any case where (but for this subsection) both that section and that Article would apply.

(4) Article 57 of PACE (right to have someone informed when arrested and detained) does not apply in relation to a person detained in a place of safety under this Part.

Record of detention to be kept

149.-(1) Where a person is taken to a place of safety under section 139 or section 145 and detained there under section 142 or 143, the appropriate officer (as defined by section 160) must make a written record of the fact that the person has been so detained.

(2) The written record-

(a)must be made as soon as practicable after the decision is made to detain the person under section 142 or 143; and

(b)must be made in the presence of the person, who must at that time be informed by the appropriate officer that he or she is being detained under that section.

(3) Subsection (2)(b) does not apply where, at the time when the written record is made, the person is-

(a)incapable of understanding what is said to him or her;

(b)violent or likely to become violent; or

(c)in urgent need of medical attention.

Responsibilities of the appropriate officer

150.-(1) The appropriate officer must ensure that a person who is detained under this Part in a place of safety is treated in accordance with-

(a)any provisions of this Part or PACE that relate to the treatment of persons who are so detained; and

(b)any code of practice under this Act or PACE that relates to the treatment of persons who are so detained.

(2) The appropriate officer must also ensure that all matters relating to a person who is detained under this Part in a place of safety which are required by this Part, PACE or such a code of practice to be recorded in writing are so recorded.

Review of detention

151.-(1) Where a person is detained in a place of safety under this Part, reviews of whether the detention conditions set out in section 144(2) are still met must be carried out periodically by the appropriate officer in accordance with this section.

(2) Subject to subsection (3)-

(a)the first review must be not later than 6 hours after the person's arrival at the place of safety;

(b)subsequent reviews must be at intervals of not more than 6 hours.

(3) A review may be postponed-

(a)if, having regard to all the circumstances prevailing at the latest time for it specified in subsection (2), it is not practicable to carry out the review at that time;

(b)if at that time the appropriate officer is not readily available.

(4) If a review is postponed under subsection (3) it must be carried out as soon as practicable after the latest time specified for it in subsection (2).

(5) If a review is carried out after postponement under subsection (3), the fact that it was so carried out does not affect any requirement of this section as to the time at which any subsequent review is to be carried out.

(6) The appropriate officer must record in writing-

(a)any decision made, on a review, to continue to detain the person;

(b)the reasons for any postponement of a review.

(7) A record under subsection (6)(a)-

(a)must be made as soon as practicable after the decision is made; and

(b)must be made in the presence of the person, who must at that time be informed by the appropriate officer of the decision.

(8) Subsection (7)(b) does not apply where the person is, at the time when the written record is made-

(a)incapable of understanding what is said to him or her;

(b)asleep;

(c)violent or likely to become violent; or

(d)in urgent need of medical attention.

(9) Any reference in this section to a period of time is to be treated as approximate only.

Access to legal advice

152.-(1) A person who is detained in a place of safety under this Part is entitled, if he or she so requests, to consult a solicitor privately at any time.

(2) If a person makes such a request, he or she must be permitted to consult a solicitor as soon as is practicable.

(3) A request under this section and the time at which it was made must be recorded in writing.

(4) Article 59 of PACE (access to legal advice) does not apply in relation to a person who is detained in a place of safety under this Part.

Searches of person following removal to place of safety

153.  Article 55 of PACE (searches of detained persons) applies in relation to a person detained in a place of safety under this Part as if-

(a)in paragraph (1) the reference to a person who has been brought to a police station after being arrested elsewhere were to a person who has been brought to a police station under section 139 or under section 145 (except from another police station);

(b)paragraph (4)(a)(iii) were omitted;

(c)in paragraph (7) the reference to the person mentioned there were to a person detained in a place of safety under this Part.

Searches and examination to ascertain identity

154.  Article 55A of PACE (searches and examination to ascertain identity) applies in relation to a person detained in a place of safety under this Part as if-

(a)in paragraph (1) the reference to a person who is detained in a police station were to a person who is detained in any place of safety under this Part;

(b)paragraphs (1)(a), (2), (5) and (9) to (13) were omitted;

(c)in paragraphs (6) and (7) the references to taking photographs were omitted.

Intimate searches

155.  Article 56 of PACE (intimate searches) applies in relation to a person detained in a place of safety under this Part as if-

(a)in paragraph (1)(a) the reference to a person who has been arrested and is in police detention were a reference to a person detained in a place of safety under this Part;

(b)in paragraph (1)(a)(ii) the reference to police detention or the custody of a court were a reference to detention under this Part;

(c)paragraphs (1)(b), (3A) to (4), (9), (10A), (12)(a)(iii) and (13A) were omitted.

Annual records

156.-(1) The records that must be kept under Article 50 of PACE include records showing, on an annual basis-

(a)the number of persons detained under this Part in hospitals;

(b)the number of persons detained under this Part in police stations.

(c)the number of children detained under this Part in hospitals;

(d)the number of children detained under this Part in police stations;

(e)final disposals in respect of children detained as mentioned in paragraphs (c) and (d).

(2) Every annual report under section 58(1) of the Police (Northern Ireland) Act 2000 must contain information about the matters mentioned in subsection (1) in respect of the period to which the report relates.

(3) Regulations may provide that the records to be kept by virtue of subsection (1)(e) are records of such information, in respect of each child who ceases to be detained under this Part, as may be prescribed; and that subsection (2) is to be read accordingly.

(4) In this section "children" means persons under 18.

Supplementary

Principles applying for purposes of Part 9

157.-(1) Where for any purpose of this Part a determination falls to be made of whether a person is unable to make a decision for himself or herself about a matter-

(a)the question whether the person is or is not able to make such a decision is to be determined solely by reference to whether the person is or is not able to do the things mentioned in section 4(1)(a) to (d);

(b)the person is not to be treated as unable to make a decision for himself or herself about the matter unless all practicable help and support to enable the person to make such a decision have been given without success;

(c)the person is not to be treated as unable to make a decision for himself or herself about the matter merely because the person makes an unwise decision.

(2) A determination that a person is unable to make a decision, or about what is in a person's best interests, must not be made for any purpose of this Part merely on the basis of-

(a)the person's age or appearance; or

(b)any other characteristic of the person, including any condition that the person has, which might lead others to make unjustified assumptions about the person's ability to make a decision or about what is in the person's best interests.

(3) Where for any purpose of this Part it falls to a person ("the relevant officer") to determine what would be in the best interests of another person ("R"), the relevant officer-

(a)must consider all the relevant circumstances (that is, all the circumstances of which the relevant officer is aware which it is reasonable to regard as relevant); and

(b)must in particular take the steps in subsections (4) to (8).

(4) The relevant officer must, in determining what would be in R's best interests-

(a)so far as practicable, encourage and help R to participate as fully as possible in that determination; and

(b)have special regard to (so far as they are reasonably ascertainable) R's past and present wishes and feelings.

(5) Where it is practicable for the relevant officer to consult-

(a)a key person (see subsection (7)), or

(b)any other person who is named by R as someone to be consulted or who is engaged in caring for R or interested in R's welfare,

about what would be in R's best interests and in particular about R's past and present wishes and feelings, the relevant officer must, so far as is practicable and appropriate, consult those persons about those questions.

(6) So far as the views of any of those persons about those questions are ascertained, the relevant officer must take those views into account.

(7) In subsection (5) "a key person" means-

(a)if R is 16 or over, any person who is R's nominated person;

(b)if R is under 16, a person with parental responsibility for R.

(8) The relevant officer must, in relation to any removal, detention or transfer that is being considered, have regard to whether the purpose for which it would be carried out can be as effectively achieved in a way that is less restrictive of R's rights and freedom of action.

(9) In consequence of this section, sections 1 to 3 and 5 to 8 (principles, best interests etc) do not apply for the purposes of this Part.

Reasonable belief etc

158.-(1) This section applies if, after a person ("the relevant officer") has removed, detained or transferred another person in reliance on any provision of this Part, any question arises-

(a)whether a particular provision of section 157 was complied with; or

(b)whether a belief of the relevant officer that a condition in section 139(2), 144(2) or 145(2) was met was a reasonable belief.

(2) In deciding that question, regard is to be had in particular to-

(a)the place and other circumstances in which the relevant officer's determination fell to be made; and

(b)in particular, where the relevant officer did not have available to him or her the advice of a medical practitioner or approved social worker, that fact.

(3) Nothing in this section affects the matters to which regard is to be had in deciding any similar question that may arise under any other Part.

Power of constable to use reasonable force

159.  Where-

(a)a power is conferred on a constable by virtue of this Part, and

(b)the provision conferring the power does not provide that the power may be exercised only with the consent of a person other than a police officer,

the constable may use reasonable force, if necessary, in the exercise of the power.

Definitions for purposes of Part 9

160.-(1) In this Part-

"the appropriate officer", in relation to a person who is detained in a place of safety, means-

"best interests": see section 157 for provisions about the determination of a person's best interests;

"custody officer", in relation to a police station, means a person who under PACE is a custody officer, or performing the functions of a custody officer, at that police station;

"PACE" means the Police and Criminal Evidence (Northern Ireland) Order 1989;

"place of safety" means-

"public place" means a place to which the public have access;

"unable to make a decision", and references to enabling a person to make a decision, are to be read in accordance with section 4.

(2) The Department of Justice may by regulations amend the definition of "place of safety" in subsection (1).

(3) Regulations under subsection (2) may make such consequential amendments of this Part as the Department of Justice considers appropriate.

(4) The provision which may be made by virtue of subsection (3) includes, in particular, provision which amends or applies either of sections 142 and 143 or makes provision corresponding to those sections.

(5) For the purposes of sections 147 and 157, where the age of a person is not known, it is to be taken to be the age that the person appears to be.

Relationship of Part 9 to other provisions

161.-(1) A power that a constable has under any provision of this Part (a "place of safety power") does not affect-

(a)any authority that the constable has under Part 2 to do an act other than an act authorised by the place of safety power;

(b)any authority to do any act that a person other than the constable has; or

(c)any power that the constable has otherwise than under this Act.

(2) If, while a person is detained in or being taken to a place of safety under any provision of this Part, the person is arrested for an offence-

(a)the relevant provisions of PACE apply; and

(b)the person ceases to be liable to be detained under this Part or taken to a place of safety under this Part.

(3) Nothing in subsection (2)(b) affects the application of this Part on any subsequent occasion on which the person is found in a public place.

PART 10CRIMINAL JUSTICE

CHAPTER 1REMAND TO HOSPITAL

Remand to hospital

162.-(1) Where-

(a)the Crown Court or a court of summary jurisdiction has power to remand an accused person ("A") in custody,

(b)the court considers that it would remand A in custody if it did not remand A under this section, and

(c)either or both of the conditions for remand to hospital are met,

the court may, instead of remanding A in custody, remand A to a hospital specified by the court.

(2) In this section "the conditions for remand to hospital" means-

(a)the medical report condition (see section 164(1));

(b)the treatment condition (see section 165(1)).

(3) The court may remand an accused person under this section only if it is satisfied, on the written or oral evidence of a person representing the managing authority of the hospital, that arrangements have been made for the accused person's detention in the hospital in pursuance of the remand.

(4) Where a court has remanded an accused person ("A") under this section, it may further remand A under this section if it considers that-

(a)it would remand A in custody if it did not make the further remand under this section; and

(b)either or both of the conditions for remand to hospital are met.

(5) A person may not be remanded or further remanded under this section for more than 28 days at a time or for more than 12 weeks in total.

(6) For the meaning of "an accused person" see section 163.

Section 162: meaning of "an accused person"

163.-(1) In section 162 "an accused person" has the following meaning.

(2) In relation to the Crown Court, "an accused person" means-

(a)a person who is awaiting trial before the court for an offence punishable with imprisonment, or

(b)a person who has been arraigned before the court for an offence punishable with imprisonment and has not yet been sentenced or otherwise dealt with for that offence,

but does not include a person who has been convicted before the Crown Court of an offence for which the sentence is fixed by law.

(3) In relation to a court of summary jurisdiction, "an accused person" means-

(a)a person who has been convicted by the court of an offence punishable on summary conviction with imprisonment; or

(b)a person charged with such an offence if the court is satisfied that the person did the act or made the omission charged.

Section 162: the medical report condition

164.-(1) For the purposes of section 162 "the medical report condition" is that-

(a)the court is satisfied on the required medical evidence that A has, or there is reason to suspect that A has, a disorder;

(b)the court considers that a report ought to be made as to A's mental or physical condition;

(c)it appears to the court that a proper assessment of A's condition for the purposes of the report will be impracticable if A is remanded in custody; and

(d)it appears to the court, having regard in particular to the matter mentioned in subsection (2), that such an assessment will be practicable if A is remanded to hospital.

(2) The matter mentioned in subsection (1)(d) is how likely it is, as regards any examination that may be necessary for the assessment-

(a)that consent will be given by A or by a person with authority to give consent on behalf of A; or

(b)that the examination will be capable of being carried out by virtue of Part 2 of this Act (or, if A is under 16, under the Mental Health Order).

(3) In subsection (1)(a) "the required medical evidence" means (subject to subsection (4)) the oral evidence of-

(a)if the disorder is mental disorder, an approved medical practitioner;

(b)otherwise, a medical practitioner who appears to the court to have special experience in the diagnosis or treatment of the disorder.

(4) Where this section applies for the purposes of section 162(4) (further remands), in subsection (1)(a) "the required medical evidence" means the written or oral evidence of the medical practitioner who is in charge of A's care in the hospital.

Section 162: the treatment condition

165.-(1) For the purposes of section 162 "the treatment condition" is that-

(a)the court is satisfied on the required medical evidence-

(i)that A has a disorder requiring treatment; and

(ii)that failure to provide treatment to A as an in-patient in a hospital would be more likely than not to result in serious physical or psychological harm to A or serious physical harm to other persons; and

(b)it appears to the court, having regard in particular to the matters mentioned in subsection (2), that remanding A to hospital is likely to result in significantly better clinical outcomes for A than if A were remanded in custody.

(2) The matters mentioned in subsection (1)(b) are-

(a)the ways in which A might become an in-patient in a hospital if remanded in custody;

(b)whether treatment for the disorder is available in the hospital to which A would be remanded if A were remanded to hospital; and

(c)how likely it is, as regards such treatment-

(i)that consent will be given by A or by a person with authority to give consent on behalf of A; or

(ii)that the treatment will be capable of being given to A by virtue of Part 2 of this Act (or, if A is under 16, under the Mental Health Order).

(3) In subsection (1)(a) "the required medical evidence" means, subject to subsection (4), the written or oral evidence of at least two medical practitioners, including-

(a)if the disorder is mental disorder, the oral evidence of an approved medical practitioner;

(b)otherwise, the oral evidence of a medical practitioner who appears to the court to have special experience in the diagnosis or treatment of the disorder.

(4) Where this section applies for the purposes of section 162(4) (further remands), in subsection (1)(a) "the required medical evidence" means the written or oral evidence of the medical practitioner who is in charge of A's care in the hospital.

Effect of remand to hospital

166.-(1) Where a person is remanded under section 162-

(a)a constable or any other person directed to do so by the court must take the person to the hospital specified by the court;

(b)the managing authority of that hospital must-

(i)admit the person; and

(ii)subject to the following provisions of this section, detain him or her for the period of the remand; and

(c)any question whether the person may be given any treatment while detained in pursuance of the remand is (subject to section 243) to be determined in the same way as if the person were not so detained.

(2) The court which remanded the person may at any time terminate the remand if it appears to the court that it is appropriate to do so.

(3) A person remanded under section 162 may obtain at his or her own expense, from a medical practitioner chosen by the person, an independent report as to the person's mental or physical condition and apply to the court on the basis of that report for the remand to be terminated under subsection (2).

(4) If a person remanded under section 162 absconds from the hospital, or while being taken to or from the hospital-

(a)the person may be arrested without warrant by any constable;

(b)after being arrested, the person must be brought as soon as practicable before the court that remanded him or her; and

(c)on the person's being brought before it, the court may terminate the remand and deal with the person in any way in which it would have dealt with the person if the person had not been remanded under section 162.

(5) The power of further remanding a person under section 162 may be exercised by the court without the person's being brought before the court if the person is represented by counsel, or a solicitor, who is given an opportunity of being heard.

(6) References in subsections (1) to (4) to a remand under section 162 include a further remand under that section; and subsection (1) applies in relation to the further remand to a hospital of a person who has been admitted to the hospital and is not brought before the court as if paragraphs (a) and (b)(i) were omitted.

CHAPTER 2POWERS OF COURT ON CONVICTION

Public protection orders with and without restrictions

Public protection orders with and without restrictions

167.-(1) This section applies where-

(a)a person is convicted before the Crown Court of an offence punishable with imprisonment, other than an offence for which the sentence is fixed by law; or

(b)a person is convicted by a court of summary jurisdiction of an offence punishable on summary conviction with imprisonment.

(2) The court may-

(a)if the detention conditions are met, make a public protection order without restrictions;

(b)if the detention conditions and the restriction condition are met, make a public protection order with restrictions.

For the meaning of "the detention conditions" and "the restriction condition" see sections 168 and 169.

(3) In this Part (except paragraph (b)) "public protection order without restrictions" means an order which-

(a)requires that the offender be admitted to and detained in an appropriate establishment which is specified in the order; and

(b)provides that the order is to be treated as a public protection order without restrictions.

(4) In this Part (except paragraph (b)) "public protection order with restrictions" means an order which-

(a)requires that the offender be admitted to and detained in an appropriate establishment which is specified in the order; and

(b)either-

(i)provides (with no time limit) that the order is to be treated as a public protection order with restrictions; or

(ii)provides that for a specified period the order is to be treated as a public protection order with restrictions.

(5) For the effect of public protection orders without restrictions and public protection orders with restrictions see-

(a)section 171 (effect of public protection orders with and without restrictions);

(b)Chapter 3 (detention under public protection orders without restrictions); and

(c)Chapter 4 (detention under public protection orders with restrictions: restrictions on discharge etc).

(6) In this Part "appropriate establishment" means-

(a)a hospital; or

(b)a care home-

(i)in which care is provided for people who have an impairment of, or a disturbance in the functioning of, the mind or brain; and

(ii)which is designated by the Department of Justice for the purposes of this paragraph.

(7) In this Part "public protection order" (without more) means a public protection order without restrictions or a public protection order with restrictions.

Section 167: the detention conditions

168.-(1) For the purposes of section 167 "the detention conditions" are-

(a)that the court is satisfied, on the required medical evidence, of the matters mentioned in subsection (2);

(b)that, having regard to all the circumstances and in particular to the matters mentioned in subsection (3), the court considers that making an order for the offender to be detained in an appropriate establishment is the most suitable way of dealing with the case; and

(c)that the court is satisfied, on the written or oral evidence of a person representing the managing authority of the appropriate establishment specified in the order ("the establishment"), that arrangements have been made for the offender's detention there in pursuance of the order.

(2) The matters referred to in subsection (1)(a) are-

(a)that there is an impairment of, or a disturbance in the functioning of, the offender's mind or brain;

(b)that appropriate care or treatment is available for the offender in the establishment;

(c)that dealing with the offender in any way not involving his or her detention would create a risk, linked to the impairment or disturbance, of serious physical or psychological harm to other persons; and

(d)that detaining the offender in the establishment in circumstances amounting to a deprivation of liberty would be a proportionate response to-

(i)the likelihood of the harm concerned; and

(ii)the seriousness of that harm.

(3) The matters referred to in subsection (1)(b) are-

(a)the other available ways of dealing with the offender;

(b)the nature of the offence;

(c)the past history of the offender;

(d)the risk of physical or psychological harm to other persons if the offender were set at large.

(4) In considering for any purpose of this section whether it would be appropriate to deal with the offender in a way not involving detention, or what risk would be created by dealing with the offender in that way, the court-

(a)must in particular consider whether if it dealt with the offender in that way it could also make a sexual offences prevention order or violent offences prevention order in respect of the offender; and

(b)if it could make such an order, must take into account that fact and the effect of such an order.

(5) In this section "the required medical evidence" means the written or oral evidence of at least two medical practitioners, including the oral evidence of an approved medical practitioner.

(6) In this section-

"sexual offences prevention order" means an order under section 106 of the Sexual Offences Act 2003;

"violent offences prevention order" has the same meaning as in Part 8 of the Justice Act (Northern Ireland) 2015 (see section 76(1)).

Section 167: the restriction condition

169.-(1) For the purposes of section 167 "the restriction condition" is that the court, having regard to all the circumstances and in particular to the matters mentioned in subsection (2), considers that making a public protection order with restrictions (rather than a public protection order without restrictions) is necessary for the protection of the public from serious physical or psychological harm.

(2) The matters are-

(a)the nature of the offence;

(b)the past history of the offender;

(c)the risk of physical or psychological harm to other persons if the offender were set at large.

Further provision about making of public protection orders

170.-(1) Nothing in a provision mentioned in subsection (2) prevents a court from making a public protection order in respect of an offence the sentence for which would otherwise fall to be imposed under that provision.

(2) The provisions referred to in subsection (1) are-

(a)Article 70(2) of the Firearms (Northern Ireland) Order 2004;

(b)paragraph 2(4) or (5) of Schedule 2 to the Violent Crime Reduction Act 2006;

(c)Article 13 or 14 of the Criminal Justice (Northern Ireland) Order 2008;

(d)section 7 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.

(3) Any reference in this section to a sentence falling to be imposed under a provision mentioned in subsection (2) is to be read in accordance with Article 4(2) of the Criminal Justice (Northern Ireland) Order 2008.

(4) Where a public protection order is made in respect of an offence, the court-

(a)may not pass a custodial sentence or impose a fine or make a probation order in respect of the offence; but

(b)may make any other order which the court has power to make.

Effect of public protection orders

171.-(1) Where a court makes a public protection order in respect of a person-

(a)a constable or any other person directed to do so by the court must take the person to the establishment specified in the order;

(b)the managing authority of that establishment must-

(i)admit the person; and

(ii)detain him or her in accordance with the relevant provisions; and

(c)any question whether the person may be given any treatment while detained in pursuance of the order is (subject to section 243) to be determined in the same way as if the person were not so detained.

(2) In this section "the relevant provisions" means-

(a)in relation to a public protection order without restrictions, Chapter 3;

(b)in relation to a public protection order with restrictions, Chapter 4 (but see sections 172 and 173).

Power to direct the ending of restrictions under a public protection order

172.-(1) This section applies if-

(a)a public protection order with restrictions is in force in respect of a person; and

(b)the Department of Justice is satisfied that it is no longer necessary for the protection of the public from serious physical or psychological harm that the person be subject to a public protection order with restrictions.

(2) The Department of Justice may direct that, with effect from a date specified in the direction, the public protection order is to have effect as a public protection order without restrictions (see further section 173).

Effect of ending of restrictions under a public protection order

173.-(1) This section applies where a court has made a public protection order with restrictions in respect of a person and-

(a)a direction is made under section 172 (ending of restrictions) in respect of the order; or

(b)the order provides that for a specified period the order is to be treated as a public protection order with restrictions, and that period ends at a time when the order is still in force and when no direction has been made under section 172.

(2) From the end of the restricted period-

(a)Chapter 4 ceases to apply;

(b)the order has effect as if it were a public protection order without restrictions requiring the person to be detained in the establishment concerned; and

(c)Chapter 3 applies in relation to the person as if the order had been made (as a public protection order without restrictions) on the last day of the restricted period and as if the person had then been admitted to the establishment concerned in pursuance of the order.

(3) If when the restricted period ends the person is absent with permission given under section 195, the permission, and any accompanying direction under section 195(4), have effect from the end of the restricted period as if given under section 187.

(4) In this section-

"the establishment concerned" means the establishment in which, immediately before the end of the restricted period, the person was liable to be detained under the public protection order with restrictions;

"the restricted period" means-

Hospital directions

Hospital direction when passing custodial sentence

174.-(1) This section applies where-

(a)a person is convicted before the Crown Court of an offence punishable with imprisonment, other than an offence for which the sentence is fixed by law; or

(b)a person is convicted by a court of summary jurisdiction of an offence punishable on summary conviction with imprisonment.

(2) If-

(a)the court, having considered the other available ways of dealing with the offender, decides to impose a custodial sentence (as defined by section 253) in respect of the offence, and

(b)the conditions in section 175 are met,

the court may when it passes the custodial sentence direct that, instead of being removed to and detained in a prison, the offender is to be removed to and detained in a hospital specified in the direction.

(3) A direction under this section given in relation to an offender has effect not only as regards the custodial sentence mentioned in subsection (2) but also (so far as applicable) as regards any other custodial sentence imposed on the same or a previous occasion.

(4) Where the custodial sentence imposed by the court is not a sentence of imprisonment, any reference in this section to a "prison" is to a place in which the person would be liable to be detained under the sentence but for the direction under this section.

(5) In this Part a "hospital direction" means a direction under this section.

Conditions for giving hospital direction

175.-(1) The conditions referred to in section 174(2) are-

(a)that the court is satisfied, on the required medical evidence, of the matters mentioned in subsection (2);

(b)that, having regard to all the circumstances and in particular to the matters mentioned in subsection (3), the court considers that giving a hospital direction is appropriate; and

(c)that the court is satisfied on the written or oral evidence of a person representing the managing authority of the hospital specified in the direction ("the hospital") that arrangements have been made for the offender's detention in the hospital in pursuance of the direction.

(2) The matters referred to in subsection (1)(a) are-

(a)that the offender has a disorder requiring treatment;

(b)that failure to provide treatment to the offender as an in-patient in a hospital would be more likely than not to result in serious physical or psychological harm to the offender or serious physical harm to other persons; and

(c)that treatment appropriate to the offender's case is available for the offender in the hospital.

(3) The matters referred to in subsection (1)(b) are-

(a)the effect of section 198 (transfer from hospital to prison);

(b)the ways in which the offender might become an in-patient in a hospital if the court passed a custodial sentence without giving a hospital direction; and

(c)how likely it is that, if a hospital direction is given and the offender is detained in hospital under the direction-

(i)consent to treatment will be given by the offender, or by a person with authority to give consent on behalf of the offender; or

(ii)treatment will be capable of being given to the offender by virtue of Part 2 of this Act (or, if the offender is under 16, under the Mental Health Order).

(4) In subsection (1)(a) "the required medical evidence" means the written or oral evidence of at least two medical practitioners, including the oral evidence of-

(a)if the disorder is mental disorder, an approved medical practitioner;

(b)otherwise, a medical practitioner who appears to the court to have special experience in the diagnosis or treatment of the disorder.

Effect of hospital directions

176.  Where a court gives a hospital direction in respect of a person-

(a)a constable or any other person directed to do so by the court must take the person to the hospital specified in the direction;

(b)the managing authority of that hospital must-

(i)admit the person; and

(ii)detain him or her in accordance with Chapter 5; and

(c)any question whether the person may be given any treatment while detained in a hospital in pursuance of the direction is (subject to section 243) to be determined in the same way as if the person were not so detained.

Interim detention orders

Interim detention orders

177.-(1) This section applies where-

(a)a person is convicted before the Crown Court of an offence punishable with imprisonment, other than an offence for which the sentence is fixed by law; or

(b)a person is convicted by a court of summary jurisdiction of an offence punishable on summary conviction with imprisonment.

(2) If the conditions in subsection (3) are met the court may, before-

(a)making a public protection order,

(b)passing a custodial sentence with a hospital direction, or

(c)dealing with the offender in some other way,

make an order which requires that the offender be admitted to a hospital specified in the order and detained there in accordance with section 178.

(3) The conditions are-

(a)that the court is satisfied on the required medical evidence-

(i)that there is an impairment of, or disturbance in the functioning of, the offender's mind or brain; and

(ii)that appropriate care or treatment is available for the offender in the hospital;

(b)that there is reason to suppose that the most suitable way of dealing with the case may be-

(i)to make a public protection order; or

(ii)to pass a custodial sentence and give a hospital direction;

(c)that the court is satisfied on the written or oral evidence of a person representing the managing authority of the hospital that arrangements have been made for the offender's detention in the hospital in pursuance of the order.

(4) The court may regard the condition in subsection (3)(b)as met only if-

(a)it considers that a custodial sentence is not, or may not be, appropriate but is satisfied on the required medical evidence that there is reason to suppose that the conditions in section 168(2)(c) and (d) may be met; or

(b)it considers that a custodial sentence is appropriate and is satisfied on the required medical evidence that there is reason to suppose that the condition in section 175(2)(b) may be met.

(5) In this section "the required medical evidence" means the written or oral evidence of at least two medical practitioners, including the oral evidence of an approved medical practitioner.

(6) In this Part "interim detention order" means an order under this section.

Effect of interim detention orders

178.-(1) Where a court makes an interim detention order in respect of a person-

(a)a constable or any other person directed to do so by the court must take the person to the hospital specified in the order;

(b)the managing authority of the hospital must-

(i)admit the person; and

(ii)detain him or her in accordance with this section; and

(c)any question whether the person may be given any treatment while detained in pursuance of the order is (subject to section 243) to be determined in the same way as if the person were not so detained.

(2) An interim detention order-

(a)has effect for such period, not exceeding 12 weeks, as the court may specify when making the order; but

(b)subject to subsection (3), may be renewed for further periods of not more than 28 days at a time if it appears to the court on the written or oral evidence of the responsible medical practitioner that the continuation of the order is justified.

(3) An interim detention order may not continue in force for more than 6 months in total.

(4) Where an interim detention order has been made, the court must terminate the order if it-

(a)makes a public protection order in respect of the offender;

(b)passes a custodial sentence and gives a hospital direction in respect of the offender; or

(c)decides, after considering the written or oral evidence of the responsible medical practitioner, to pass a custodial sentence without a hospital direction or to deal with the offender in some other way.

(5) The power of renewing an interim detention order may be exercised without the offender's being brought before the court if the offender is represented by counsel, or a solicitor, who is given an opportunity of being heard.

(6) In the case of an offender who is subject to an interim detention order, the court may make a public protection order without the offender's being brought before the court if the offender is represented by counsel, or a solicitor, who is given an opportunity of being heard.

(7) If an offender absconds from a hospital in which he or she is liable to be detained under an interim detention order, or while being taken to or from such a hospital-

(a)the offender may be arrested without warrant by any constable;

(b)after being arrested, the offender must be brought as soon as practicable before the court that made the order; and

(c)on the offender's being brought before it, the court may terminate the interim detention order and deal with the offender in any way in which it could have done if no such order had been made.

CHAPTER 3DETENTION UNDER A PUBLIC PROTECTION ORDER WITHOUT RESTRICTIONS

Detention and discharge

Detention under a public protection order without restrictions

179.-(1) This section applies where-

(a)a public protection order without restrictions is made in respect of a person under section 167; and

(b)the person is admitted in pursuance of the order to the establishment specified in the order.

(2) The person may be detained in that establishment for a period not exceeding 6 months beginning with the date of the order.

(3) Subsection (2) is subject to (in particular)-

(a)section 180 (discharge by responsible medical officer);

(b)sections 181 to 186 (extension of period for which person liable to be detained);

(c)section 231 (powers of Tribunal).

Discharge from detention by responsible medical practitioner

180.-(1) A person who is for the time being liable to be detained under a public protection order without restrictions ceases to be so liable if the responsible medical practitioner (as defined by section 253) makes an order in writing discharging the person from being liable to be detained under the public protection order.

(2) Where-

(a)a person is liable to be detained under a public protection order without restrictions, and

(b)the responsible medical practitioner is satisfied that releasing the person from detention in an appropriate establishment would not create a substantial risk to others,

the responsible practitioner must make an order under subsection (1).

(3) For the purposes of subsection (2)(b) releasing the person from detention in an appropriate establishment would create a "substantial risk to others" if-

(a)it would create a risk, linked to an impairment of or disturbance in the functioning of the person's mind or brain, of serious physical or psychological harm to other persons; and

(b)the likelihood and seriousness of the harm concerned are such that detaining the person in an appropriate establishment in circumstances amounting to a deprivation of liberty is a proportionate response.

(4) A discharge of a person under this section does not prevent the person from being detained in circumstances amounting to a deprivation of liberty by virtue of Part 2 of this Act (or, if the person is under 16, Part 2 of the Mental Health Order), if the criteria that apply to such detention are met.

Extension of the period of an order

First extension of period of order

181.-(1) This section applies where-

(a)a person is liable to be detained under a public protection order without restrictions; and

(b)the initial period of the order has not ended.

(2) The period of the order may be extended for a period of 6 months, beginning immediately after the end of the initial period, by the making of an extension report (see section 183).

(3) In this Chapter "the initial period" of a public protection order without restrictions means the period of 6 months beginning with the date of the order.

(4) In this Part "the period" of a public protection order without restrictions means the period for which the person to whom the order relates is liable to be detained under the order.

Subsequent extensions

182.-(1) This section applies where-

(a)the period of a public protection order without restrictions has been extended for a period ("the current extension period") under a relevant provision; and

(b)the person to whom the order relates remains liable to be detained under the order.

(2) The period of the order may be further extended, for a period of one year beginning immediately after the end of the current extension period, by the making of an extension report (see section 183).

(3) In subsection (1)(a) "relevant provision" means-

(a)section 181 (first extension);

(b)this section; or

(c)paragraph 8 of Schedule 6 (procedure for extension where responsible social worker not of the requisite opinion).

Sections 181 and 182: extension reports

183.-(1) This section applies for the purposes of sections 181 and 182.

(2) An "extension report", in relation to a public protection order without restrictions made in respect of a person, is a report in the prescribed form which-

(a)is made, within the reporting period, by an appropriate medical practitioner who has examined the person within the reporting period and made the report as soon as practicable after that examination;

(b)states that in the appropriate medical practitioner's opinion the criteria for continuation are met (see section 185);

(c)includes a statement in the prescribed form, by the responsible social worker, that in the social worker's opinion the criteria for continuation are met; and

(d)includes any prescribed information.

(3) In this section-

"appropriate medical practitioner" means a medical practitioner who is unconnected with the person and is permitted by regulations under section 300 to make the report;

"the reporting period" means-

"the responsible social worker" means the approved social worker who is in charge of the person's case.

Extension of period where responsible person not of the requisite opinion

184.  Schedule6 provides a procedure for cases where it is proposed to make an extension under section 181 or 182 but the responsible social worker is not of the opinion that the criteria for continuation are met.

The criteria for continuation

185.-(1) In this Chapter "the criteria for continuation", in relation to a public protection order without restrictions made in respect of a person, has the meaning given by subsection (2).

(2) The criteria for continuation are-

(a)that there is an impairment of, or disturbance in the functioning of, the mind or brain of the person;

(b)that appropriate care or treatment is available for the person in the establishment concerned;

(c)that failure to detain the person in circumstances amounting to a deprivation of liberty in an appropriate establishment in which appropriate care or treatment is available for the person would create a risk, linked to the impairment or disturbance, of serious physical or psychological harm to other persons; and

(d)that detaining the person in the establishment concerned, in circumstances amounting to a deprivation of liberty, would be a proportionate response to-

(i)the likelihood of the harm concerned; and

(ii)the seriousness of that harm.

(3) In this section "the establishment concerned" means the establishment in which the person would be liable to be detained if the period of the order were extended.

Extension reports: further provision

186.-(1) This section contains further provisions about extension reports (as defined by section 183).

(2) For the purposes of that section an extension report is made when the completed report is signed by the medical practitioner making it.

(3) A medical practitioner who makes an extension report must give it to the relevant trust as soon as practicable.

(4) Where an extension report is given to the relevant trust, that trust must as soon as practicable-

(a)give prescribed information to the person to whom the public protection order relates and any prescribed person; and

(b)give RQIA a copy of the report.

(5) In this section "the relevant trust" means the HSC trust in whose area the establishment in which the person is liable to be detained under the public protection order is situated.

Permission for absence and transfers

Permission for absence

187.-(1) Where a person is liable to be detained under a public protection order without restrictions, the responsible medical practitioner may-

(a)give the person permission to be absent from the establishment in which the person is liable to be detained; and

(b)impose in relation to that permission any conditions that the responsible medical practitioner considers necessary for the health or safety of the person or the protection of other persons.

(2) The permission may be for a specified occasion or a specified period.

(3) Where permission is given for a specified period, the period may be extended by further permission given in the person's absence.

(4) The responsible medical practitioner may, on giving permission, direct that the person is to remain in custody during his or her absence; but such a direction may be given only if it appears to that practitioner that the direction is necessary for the health or safety of the person or the protection of other persons.

(5) Where such a direction is given, the person may be kept in the custody of-

(a)a person on the staff of the establishment; or

(b)any other person authorised in writing by the managing authority of the establishment.

(6) Where permission to be absent for more than 28 days is given to a person under this section, or a period for which a person is permitted to be absent is extended for more than 28 days, the managing authority of the establishment must-

(a)within the period of 14 days beginning with the day the permission is given or the day the period is extended (as the case may be), inform RQIA of the address at which the person is staying; and

(b)notify RQIA of the person's return within the period of 14 days beginning with the day of the return.

(7) Where a person ("A") is absent in pursuance of permission given under this section, the responsible medical practitioner may, by notice in writing given to A or to the person for the time being in charge of A, revoke the permission and recall A to the establishment if it appears to that practitioner that it is necessary to do so-

(a)for the health or safety of A;

(b)for the protection of other persons; or

(c)because A is not receiving proper care.

(8) But a person may not be recalled under subsection (7) after the person has ceased to be liable to be detained under the order mentioned in subsection (1).

Transfers between hospitals etc

188.-(1) Where a person is liable to be detained under a public protection order without restrictions, the managing authority of the establishment in which the person is liable to be detained may arrange for the transfer of the person from that establishment to another suitable establishment.

(2) Where a person is transferred under this section, section 171(1)(b) applies as if the establishment referred to there were the establishment to which the person has been transferred.

(3) Before a managing authority arranges for the transfer of a person ("A") under this section, it must if practicable inform-

(a)if A is 16 or over, any person who is A's nominated person;

(b)if A is under 16, a person with parental responsibility for A.

(4) Where a person is transferred under this section, the managing authority which arranged the transfer must immediately notify RQIA of the transfer.

(5) The power of a managing authority under this section to arrange for the transfer of a person from one establishment to another is subject to any prescribed conditions.

(6) In this section "suitable establishment" means an appropriate establishment (as defined by section 167) in which appropriate care or treatment is available for the person.

Effect of custodial sentence

Effect of custodial sentence

189.-(1) This section applies where a person who is liable to be detained under a public protection order without restrictions is detained in custody in pursuance of any sentence or order passed or made by a court in the United Kingdom (including an order committing or remanding the person in custody).

(2) If the person is detained in custody for a period exceeding 6 months, or for successive periods exceeding 6 months in total, the person ceases at the end of the period of 6 months beginning with the first day of the detention in custody to be liable to be detained under the public protection order.

(3) Subsection (4) applies where-

(a)subsection (2) does not apply; and

(b)at the time of the person's discharge from custody, the person is liable to be detained under the public protection order.

(4) Section 244 (power to return to hospital etc a person who is absent without permission) applies in relation to the person as if on the day of the discharge from custody the person had absented himself or herself without permission given under section 187 from the establishment where the person is liable to be detained under the public protection order.

CHAPTER 4DETENTION UNDER A PUBLIC PROTECTION ORDER WITH RESTRICTIONS

Detention under a public protection order with restrictions

190.-(1) This section applies where a person is liable to be detained under a public protection order with restrictions made under section 167.

(2) The person continues to be liable to be detained under the order until discharged absolutely under section 191 or Chapter 8.

Discharge from detention by Department of Justice

191.-(1) At any time while a public protection order with restrictions is in force in respect of a person the Department of Justice may, if it considers it appropriate to do so, by warrant-

(a)discharge the person absolutely (that is, discharge the person from being liable to be detained under the order); or

(b)discharge the person from the establishment concerned subject to conditions (see further section 192).

(2) The power under subsection (1) to discharge a person absolutely includes power to do so at a time when the person has been conditionally discharged under this section or section 232 and has not been recalled under section 192.

(3) If-

(a)a public protection order with restrictions provides that the order is to be treated as a public protection order with restrictions for a specified period ("the restricted period"), and

(b)that period ends at a time when the person has been conditionally discharged under subsection (1) and has not been recalled under section 192,

the person is to be treated as absolutely discharged when the restricted period ends (and accordingly ceases at that time to be liable to be detained under the public protection order).

(4) A discharge of a person under this section does not prevent the person from being detained in circumstances amounting to a deprivation of liberty by virtue of Part 2 of this Act (or, if the person is under 16, Part 2 of the Mental Health Order) if the criteria that apply to such detention are met.

(5) In this section "the establishment concerned" means the establishment in which, immediately before the discharge under subsection (1), the person is liable to be detained under the public protection order.

Power to recall person who has been conditionally discharged

192.-(1) This section applies where a public protection order with restrictions is in force in respect of a person who has been conditionally discharged under section 191.

(2) The Department of Justice may by warrant recall the person to an appropriate establishment specified in the warrant ("the specified establishment") if it appears to the Department that-

(a)failure to recall the person would create a risk, linked to an impairment of or disturbance in the functioning of the person's mind or brain, of serious physical or psychological harm to other persons; and

(b)the likelihood and seriousness of the harm concerned are such that recalling the person is a proportionate response.

(3) On a recall under this section-

(a)if the specified establishment is not the one from which the person was conditionally discharged, section 171(1)(b) applies as if the establishment referred to there were the specified establishment;

(b)in any case, the person is to be treated for the purposes of section 244 (power to return to hospital etc a person who is absent without permission) as if the person had absented himself or herself, without permission given under section 195, from the specified establishment; and

(c)if the public protection order provides that the order is to be treated as a public protection order with restrictions for a specified period, that period is treated as not ending until the person returns to the specified establishment or is returned there under section 244.

Reports by responsible medical practitioner

193.-(1) While a public protection order with restrictions is in force in respect of a person, the responsible medical practitioner must at such intervals (not exceeding one year) as the Department of Justice may direct examine and report to the Department of Justice on that person.

(2) A report under this section must contain any prescribed information.

Direction for person to attend for purposes of justice etc

194.-(1) Where-

(a)a person is liable to be detained under a public protection order with restrictions, and

(b)the Department of Justice is satisfied that the person's attendance at any place in Northern Ireland is desirable in the interests of justice or for the purposes of any public inquiry,

the Department of Justice may direct the person to be taken to that place.

(2) Where a person is directed under this section to be taken to any place, the person is, unless the Department of Justice otherwise directs, to be kept in custody-

(a)while being taken to that place;

(b)while at that place; and

(c)while being taken back to the establishment in which he or she is liable to be detained under the public protection order.

Permission for absence

195.-(1) Where a person ("A") is liable to be detained under a public protection order with restrictions, the responsible medical practitioner may with the consent of the Department of Justice-

(a)give A permission to be absent from the establishment in which A is liable to be detained ("the establishment"); and

(b)impose in relation to that permission any conditions the responsible medical practitioner considers necessary for the health or safety of A or the protection of other persons.

(2) The permission may be for a specified occasion or a specified period.

(3) Where permission is given for a specified period, the period may be extended by further permission given in the person's absence.

(4) The responsible medical practitioner may, on giving permission, direct that the person is to remain in custody during his or her absence; but such a direction may be given only if it appears to that practitioner that the direction is necessary for the health or safety of the person or the protection of other persons.

(5) Where such a direction is given, the person may be kept in the custody of-

(a)a person on the staff of the establishment; or

(b)any other person authorised in writing by the managing authority of the establishment.

(6) Where permission to be absent for more than 28 days is given to a person under this section, or a period for which a person is permitted to be absent is extended for more than 28 days, the managing authority of the establishment must-

(a)within the period of 14 days beginning with the day the permission is given or the day the period is extended (as the case may be), inform RQIA of the address at which the person is staying; and

(b)notify RQIA of the person's return within the period of 14 days beginning with the day of the return.

(7) Where-

(a)a person is absent in pursuance of permission given under this section, and

(b)it appears to the responsible medical practitioner or the Department of Justice that it is necessary to do so for the health or safety of the person or the protection of other persons or because the person is not receiving proper care,

the responsible medical practitioner or the Department of Justice may by notice in writing, given to the person or to the person for the time being in charge of him or her, revoke the permission and recall the person to the establishment.

(8) But a person may not be recalled under subsection (7) after the person has ceased to be liable to be detained under the order mentioned in subsection (1).

Transfers between hospitals etc

196.-(1) Where a person is liable to be detained under a public protection order with restrictions, the managing authority of the establishment in which the person is liable to be detained may, with the consent of the Department of Justice, arrange for the transfer of the person from that establishment to another suitable establishment.

(2) Where a person is transferred under this section, section 171(1)(b) applies as if the establishment referred to there were the establishment to which the person has been transferred.

(3) Before a managing authority arranges for the transfer of a person ("A") under this section, it must if practicable inform-

(a)if A is 16 or over, any person who is A's nominated person;

(b)if A is under 16, a person with parental responsibility for A.

(4) Where a person is transferred under this section, the managing authority which arranged the transfer must immediately notify RQIA of the transfer.

(5) The power of a managing authority under this section to arrange for the transfer of a person from one establishment to another is subject to any prescribed conditions.

(6) In this section "suitable establishment" means an appropriate establishment (as defined by section 167) in which appropriate care or treatment is available for the person.

CHAPTER 5DETENTION UNDER A HOSPITAL DIRECTION

Detention under a hospital direction

197.-(1) This section applies where a person is admitted to a hospital under a hospital direction.

(2) The person continues to be liable to be detained in hospital under the hospital direction until the direction ceases to have effect under section 198 or 240.

Termination of hospital directions

198.-(1) A hospital direction in respect of a person ("A") ceases to have effect, if it has not already done so, on A's release date (see sections 199 and 200).

(2) If before A's release date the Department of Justice receives a relevant notification-

(a)the Department of Justice must by warrant direct that A be removed to any prison in which A might (but for the hospital direction) be detained, to be dealt with there as if the hospital direction had not been given; and

(b)the hospital direction ceases to have effect on A's arrival in prison.

(3) But subsection (2) does not apply if (having received a relevant notification) the Department of Justice directs that with effect from a specified date-

(a)A is to be treated as if he or she had been removed to the hospital under the relevant provision from a prison specified in the direction under this subsection; and

(b)the hospital direction is to cease to have effect.

(4) In this section a "relevant notification" means a written notification by a suitable medical practitioner that-

(a)in the practitioner's opinion A does not have, or no longer has, the disorder;

(b)in the practitioner's opinion it is more likely than not that, if A were transferred under subsection (2), no serious physical or psychological harm to A or serious physical harm to other persons would result from A's ceasing to be provided with treatment for the disorder as an in-patient in hospital; or

(c)in the practitioner's opinion no effective treatment for the disorder can be given to A in the hospital.

(5) In this section-

(a)"the disorder" means the disorder in respect of which the hospital direction was given;

(b)"the hospital" means the hospital where A is detained;

(c)any reference to "prison" is to be read, where A would (but for the hospital direction) be detained in a place of any other description, as a reference to a place of that other description;

(d)"the relevant provision" means-

(i)section 16(2) of the Prison Act (Northern Ireland) 1953; or

(ii)if A would (but for the hospital direction) be detained in a juvenile justice centre, paragraph 3 of Schedule 2 to the Criminal Justice (Children) (Northern Ireland) Order 1998;

(e)"a suitable medical practitioner" means the responsible medical practitioner or-

(i)if the disorder was mental disorder, any approved medical practitioner;

(ii)otherwise, any medical practitioner who appears to the Department of Justice to have special experience in the diagnosis or treatment of the disorder.

Section 198: meaning of "release date"

199.  For the purposes of section198, A's "release date" is-

(a)the day (if any) on which A is entitled to be released by virtue of section 200; or

(b)if by virtue of section 200 a power to release A before that day is exercised, the day on which A is released under the power.

Duties and powers to release from detention

200.-(1) Where-

(a)a hospital direction is in force in respect of a person ("A"), and

(b)a power or duty mentioned in subsection (2) would apply in relation to A if the hospital direction had not been given and A were detained in a prison,

the power or duty applies in relation to A as it would apply if the hospital direction had not been given and A were detained in a prison.

(2) The powers and duties referred to in subsection (1) are-

(a)any power or duty to release A on licence, or to release A unconditionally;

(b)any power or duty of the Department of Justice to give a direction under section 5 of the Life Sentences (Northern Ireland) Order 2001 (direction that the release provisions are to apply);

(c)any power or duty to make a reference to the Parole Commissioners or to require a reference to those Commissioners;

(d)any power or duty of the Parole Commissioners;

(e)any power to apply to the Sentence Review Commissioners;

(f)any power or duty of the Sentence Review Commissioners or the Secretary of State under the Northern Ireland (Sentences) Act 1998.

(3) If A would (but for the hospital direction) be liable to be detained in a place of a description other than a prison, any reference in subsection (1) to a "prison" is to be read as a reference to a place of that description.

(4) If A is detained under-

(a)a juvenile justice centre order under Article 39 of the Criminal Justice (Children) (Northern Ireland) Order 1998,

(b)a custody care order under Article 44A of that Order, or

(c)a custody probation order under Article 24 of the Criminal Justice (Northern Ireland) Order 1996,

the reference in subsection (2)(a) to releasing A unconditionally includes a reference to releasing A at the start of a period of supervision.

(5) For the purposes of section 38(2) of the Prison Act (Northern Ireland) 1953 (discounting from sentences of certain prisoners periods while they are unlawfully at large), a person who-

(a)is subject to a hospital direction, and

(b)is at large in circumstances in which the person is liable to be taken into custody under any provision of this Part or section 295 (retaking of persons escaping from legal custody),

is to be treated as unlawfully at large and absent from prison.

(6) In this section "the Parole Commissioners" means the Parole Commissioners for Northern Ireland.

Reports by responsible medical practitioner

201.-(1) While a hospital direction is in force in respect of a person, the responsible medical practitioner must at such intervals (not exceeding one year) as the Department of Justice may direct examine and report to the Department of Justice on that person.

(2) A report under this section must contain any prescribed information.

Permission for absence etc

202.-(1) The provisions mentioned in subsection (2) apply in relation to a person liable to be detained in a hospital under a hospital direction as they apply in relation to a person liable to be detained under a public protection order with restrictions.

(2) Those provisions are-

• section 194 (direction for person to attend for purposes of justice etc);

• section 195 (permission for absence).

Transfers between hospitals

203.-(1) Where a person is liable to be detained in a hospital under a hospital direction, the managing authority of the hospital may, with the consent of the Department of Justice, arrange for the transfer of the person from that hospital to another hospital in which treatment appropriate to the person's case is available for the person.

(2) Where a person is transferred under this section-

(a)the managing authority of the hospital to which the person is transferred must admit the person and detain him or her in accordance with this Chapter; and

(b)the managing authority of the hospital from which the person was transferred ceases to be under a duty to detain the person.

(3) Before a managing authority arranges for the transfer of a person ("A") under this section, it must if practicable inform-

(a)if A is 16 or over, any person who is A's nominated person;

(b)if A is under 16, a person with parental responsibility for A.

(4) Where a person is transferred under this section, the managing authority which arranged the transfer must immediately notify RQIA of the transfer.

(5) The power of a managing authority under this section to arrange for the transfer of a person from one hospital to another is subject to any prescribed conditions.

CHAPTER 6UNFITNESS TO BE TRIED ETC

Procedure during trial on indictment

Procedure where question of fitness to be tried arises

204.-(1) This section applies where, on the trial of a person charged on indictment with the commission of an offence, the question arises (at the instance of the defence or otherwise) whether the accused is unfit to be tried.

(2) In the following provisions of this section that question is referred to as "the question of fitness to be tried".

(3) The question of fitness to be tried must be determined as soon as it arises; but this is subject to subsections (4) and (5).

(4) The court may postpone consideration of the question of fitness to be tried until any time up to the opening of the case for the defence if, having regard to the nature of the supposed condition of the accused, the court considers that the postponement is appropriate and is in the interests of the accused.

(5) If, before the question of fitness to be tried falls to be determined, the jury returns a verdict of acquittal on the count or each of the counts on which the accused is being tried, that question must not be determined.

(6) The question of fitness to be tried is to be determined by the court without a jury.

(7) The court may determine that the accused is unfit to be tried only if it is satisfied on the required medical evidence that the accused is unfit to be tried.

(8) In this section "the required medical evidence" means the written or oral evidence of at least two medical practitioners, including the oral evidence of an approved medical practitioner.

Finding that the accused did the act or made the omission charged

205.-(1) This section applies where in accordance with section 204(6) it is determined by a court that the accused is unfit to be tried.

(2) The trial must not proceed or further proceed but it must be determined by a jury-

(a)on the evidence (if any) already given in the trial, and

(b)on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the court under this section to put the case for the defence,

whether it is satisfied, as respects the count or each of the counts on which the accused was to be or was being tried, that the accused did the act or made the omission charged against the accused as the offence.

(3) If as respects that count or any of those counts the jury is satisfied as mentioned in subsection (2), it must make a finding that the accused did the act or made the omission charged against the accused.

(4) If as respects that count or any of those counts the jury is not so satisfied, it must return a verdict of acquittal as if on the count in question the trial had proceeded to a conclusion.

(5) Where the question of fitness to be tried was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom the accused was being tried.

Procedure in relation to finding of insanity

206.-(1) This section applies where, on the trial on indictment of any person charged with the commission of an offence-

(a)the required medical evidence is given that the person charged was an insane person at the time the offence was committed; and

(b)the jury finds that although the person charged did the act or made the omission charged, he or she was an insane person at that time.

(2) The court must direct a finding to be recorded to the effect that the person is not guilty of the offence charged on the ground of insanity.

(3) In this section-

"insane person" and "insanity" have the meanings given by section 1 of the Criminal Justice Act (Northern Ireland) 1966;

"the required medical evidence" means the written or oral evidence of at least two medical practitioners, including the oral evidence of an approved medical practitioner.

Powers to deal with person unfit to be tried or not guilty by reason of insanity

207.-(1) This section applies where-

(a)findings are recorded that the accused is unfit to be tried and that the accused did the act or made the omission charged; or

(b)a finding is recorded that the accused is not guilty by reason of insanity.

(2) Subject to the following provisions of this section, the court must-

(a)make a public protection order without restrictions (see section 167(3));

(b)make a public protection order with restrictions (see section 167(4));

(c)make a supervision and assessment order; or

(d)make an order for the absolute discharge of the accused.

(3) The power to make an order under subsection (2)(a) is exercisable only if the detention conditions are met.

(4) The power to make an order under subsection (2)(b) is exercisable only if the detention conditions and the restriction condition are met.

(5) Sections 168 and 169 (meaning of "the detention conditions" and "the restriction condition") apply for the purposes of this section (any reference to the offender being read as a reference to the accused, and any reference to the offence being read accordingly).

(6) The power to make an order under subsection (2)(c) is subject to Schedule 7, which makes provision about such orders.

(7) Where the offence to which the finding or findings relate is one for which the sentence is fixed by law-

(a)subsections (2) to (6) do not apply;

(b)the court must make a public protection order with restrictions; and

(c)the order must not include provision to the effect that it is to be treated as a public protection order with restrictions for a specified period only.

(8) Subject to section 208, a public protection order made under this section has the same effect as if it had been made under section 167 (as to that effect, see the provisions mentioned in section 167(5)).

Remission for trial where person no longer unfit to be tried

208.-(1) This section applies where-

(a)findings mentioned in section 207(1)(a) have been recorded in respect of a person;

(b)the person is liable to be detained under a public protection order made under section 207 or is subject to a supervision and assessment order made under that section; and

(c)a suitable medical practitioner notifies the Department of Justice that, in that practitioner's opinion, the person is no longer unfit to be tried.

(2) If the person is liable to be detained under a public protection order-

(a)the Department of Justice may remit the person to the Crown Court at the relevant place, for trial; and

(b)where it does so, the order ceases to have effect once the person has arrived at the Crown Court at the relevant place and the Crown Court has made any order relating to the trial.

(3) If the person is subject to a supervision and assessment order-

(a)the Department of Justice may remit the person's case to the Crown Court at the relevant place, for trial; and

(b)where it does so, the order ceases to have effect once the person's case has been so remitted and the Crown Court has made any order relating to the trial.

(4) In this section-

"the relevant place" means the place where, but for the findings mentioned in subsection (1)(a), the person would have been tried;

"a suitable medical practitioner" means-

Procedure of court of summary jurisdiction

Power to make order where the accused did the act or made the omission charged

209.  Where-

(a)a person is charged before a court of summary jurisdiction with any act or omission as an offence,

(b)the court would have power on convicting the person of the offence to make an order under section 167 (public protection orders), and

(c)the court is satisfied that the accused did the act or made the omission charged,

the court may, if it considers it appropriate to do so, make the order under section 167 without convicting the accused.

Restraining orders

Power to make restraining order following finding of unfitness to plead etc

210.-(1) In Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 (restraining orders on conviction) ("the 1997 Order")-

(a)in the heading at the end insert "etc";

(b)for paragraph (7) substitute-

"(7) A court-

(a)which deals with a person convicted of an offence under this Article, or

(b)before which a person is acquitted of an offence under this Article,

may vary or discharge the order in question by a further order.

(8) In paragraphs (1) and (7) references to a person convicted of an offence include-

(a)a person in respect of whom findings that the person is unfit to be tried, and that the person did the act or made the omission charged against him or her in respect of the offence, have been made; and

(b)a person in respect of whom a public protection order (as defined by section167 of the Mental Capacity Act (Northern Ireland) 2016) has been made in respect of the offence by virtue of section 209 of that Act.

(9) Where an order under this Article is made in respect of a person by virtue of paragraph (7)(b) or (8), the person has the same right of appeal against the order as if-

(a)the person had been convicted of the offence in question before the court that made the order; and

(b)that court had made the order when dealing with the person in respect of that offence.".

(2) In Article 7A(2) of the 1997 Order (restraining orders on acquittal) after "7" insert "(and paragraph (8) so far as applying for the purposes of paragraph (7))".

(3) The amendments made by subsections (1) and (2) apply in relation to offences committed (or alleged to have been committed) before (as well as after) the coming into operation of this section.

(4) In Article 7(8)(b) of the 1997 Order (inserted by subsection (1))-

(a)the reference to a public protection order is to be read, until the coming into operation of section 167, as a reference to a hospital order within the meaning of the Mental Health Order; and

(b)the reference to section 209 is to be read, until the coming into operation of that section, as a reference to Article 44(4) of the Mental Health Order.

CHAPTER 7TRANSFER FROM PRISON ETC TO HOSPITAL

Persons serving custodial sentences etc

Power to transfer person serving custodial sentence etc to hospital

211.-(1) Where-

(a)a person is serving a relevant sentence, and

(b)the conditions for giving a direction under this section are met (see section 212),

the Department of Justice may by warrant direct that the person be removed to a hospital specified in the direction.

(2) For the purposes of this section a person is "serving a relevant sentence" if-

(a)the person is detained under a custodial sentence (defined by section 253);

(b)the person is committed to custody for failure to comply with an order to enter into a recognizance to keep the peace or to be of good behaviour or both; or

(c)the person is committed by a court to a prison in default of payment of any sum adjudged to be paid on the person's conviction.

(3) In subsection (2)(c) "prison" includes a young offenders centre or juvenile justice centre.

Conditions for transfer under section 211

212.-(1) The conditions for giving a direction under section 211 in respect of a person ("A") are-

(a)that the Department of Justice is satisfied, on the required medical reports, of the matters mentioned in subsection (2);

(b)that, having regard to the public interest and all the circumstances, and in particular to the matters mentioned in subsection (3), the Department of Justice considers that giving the direction is appropriate; and

(c)that the Department is satisfied, on the written report of a person representing the managing authority of the hospital specified in the direction ("the hospital"), that arrangements have been made for the offender's detention in the hospital in pursuance of the direction.

(2) The matters referred to in subsection (1)(a) are-

(a)that A has a disorder requiring treatment;

(b)that failure to provide treatment to A as an in-patient in a hospital would be more likely than not to result in serious physical or psychological harm to A or serious physical harm to other persons; and

(c)that treatment appropriate to A's case is available for A in the hospital.

(3) The matters referred to in subsection (1)(b) are-

(a)the ways in which A might become an in-patient in a hospital if no direction under this section were given; and

(b)how likely it is that, if such a direction is given and A is detained in hospital under the direction-

(i)consent to treatment will be given by A, or by a person with authority to give consent on behalf of A; or

(ii)treatment will be capable of being given to A by virtue of Part 2 of this Act (or, if A is under 16, under the Mental Health Order).

(4) In subsection (1)(a) "the required medical reports" means written reports from at least two medical practitioners, including-

(a)if the disorder is mental disorder, an approved medical practitioner;

(b)otherwise, a medical practitioner who appears to the Department of Justice to have special experience in the diagnosis or treatment of the disorder.

Effect of transfer under section 211

213.-(1) Where a direction is given in respect of a person under section 211 (transfer of person serving custodial sentence etc to hospital), the managing authority of the hospital specified in the direction must-

(a)admit the person; and

(b)detain him or her in accordance with Chapter 5.

(2) In Chapter 5 (detention under a hospital direction), any reference to a hospital direction includes a reference to a direction under section 211.

Civil prisoners and immigration detainees

Transfer of civil prisoner or immigration detainee to hospital

214.-(1) Where-

(a)a person is a civil prisoner or an immigration detainee, and

(b)the conditions for giving a direction under this section are met (see section 223),

the Department of Justice may by warrant direct that that person be removed to a hospital specified in the direction.

(2) The managing authority of the hospital specified in the direction must-

(a)admit the person; and

(b)detain him or her in accordance with section 215.

(3) In this section-

"a civil prisoner" means a person committed by a court to prison for a limited term, other than a person serving a relevant sentence (as defined by section 211);

"an immigration detainee" means a person detained under the Immigration Act 1971 or under section 62 of the Nationality, Immigration and Asylum Act 2002.

Detention in hospital on removal under section 214

215.-(1) Where a person is admitted to a hospital under a direction given under section 214 (transfer of civil prisoners and immigration detainees), the person continues to be liable to be detained in hospital under that direction until that direction ceases to have effect under section 216 or 240.

(2) In sections 201 to 203 (which relate to detention under hospital directions) any reference to a hospital direction includes a reference to a direction under section 214.

Termination of direction under section 214

216.-(1) This section applies where a direction is given in respect of a person ("A") under section 214 (transfer of civil prisoner or immigration detainee to hospital).

(2) The direction ("the hospital transfer direction") ceases to have effect, if it has not already done so, at the end of the period of liability to detention.

(3) If before the end of that period the Department of Justice receives a relevant notification-

(a)the Department of Justice must by warrant direct that A be removed to any place in which A might (but for the hospital transfer direction) be detained, to be dealt with there as if the hospital transfer direction had not been given; and

(b)the hospital transfer direction ceases to have effect on A's arrival in that place.

(4) But subsection (3) does not apply if (having received a relevant notification) the Department of Justice directs that with effect from a specified date-

(a)A is to be treated as if he or she had been removed to the hospital under the relevant provision from a place, specified in the direction under this subsection, in which A might (but for the hospital transfer direction) be detained; and

(b)the hospital transfer direction is to cease to have effect.