The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008
| Jurisdiction | UK Non-devolved |
| Citation | SI 2008/1858 |
2008 No. 1858
Mental Capacity, England
The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008
Made 9th July 2008
Coming into force 3rd November 2008
The Secretary of State for Health makes these Regulations in exercise of the powers conferred by section 65(1) of, and paragraphs 31, 33(4), 47, 70, 129(3), 130 and 183(6) and (7) of Schedule A1 to, the Mental Capacity Act 20051.
A draft of this instrument has been laid before Parliament in accordance with section 65(4B)2of that Act, and approved by resolution of each House of Parliament.
PART 1
Preliminary
Citation, commencement and application
1.—(1) These Regulations may be cited as the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 and shall come into force on 3rd November 2008.
(2) These Regulations apply in relation to England only.
Interpretation
2. In these Regulations—
“approved mental health professional” means a person approved under section 114(1) of the Mental Health Act 19833to act as an approved mental health professional for the purposes of that Act;
“best interests assessor” means a person selected to carry out a best interests assessment under paragraph 38 of Schedule A1 to the Act;
“General Social Care Council” has the meaning given by section 54(1) of the Care Standards Act 20004; and
“the Act” means the Mental Capacity Act 2005.
PART 2
Eligibility to carry out assessments
Eligibility – general
3.—(1) In addition to any requirement in regulations 4 to 9, a person is eligible to carry out an assessment where paragraphs (2) to (4) are met.
(2) The person must—
(a)
(a) be insured in respect of any liabilities that might arise in connection with carrying out the assessment; and
(b)
(b) satisfy the supervisory body5that he or she has such insurance.
(3) The supervisory body must be satisfied that the person has the skills and experience appropriate to the assessment to be carried out which must include, but are not limited to, the following—
(a)
(a) an applied knowledge of the Mental Capacity Act 2005 and related Code of Practice6; and
(b)
(b) the ability to keep appropriate records and to provide clear and reasoned reports in accordance with legal requirements and good practice.
(4) The supervisory body must be satisfied that there is in respect of the person—
(a)
(a) an enhanced criminal record certificate issued under section 113B of the Police Act 19977(enhanced criminal record certificates); or
(b)
(b) if the purpose for which the certificate is required is not one prescribed under subsection (2) of that section, a criminal record certificate issued pursuant to section 113A of that Act8(criminal record certificates).
Eligibility to carry out a mental health assessment
4.—(1) A person is eligible to carry out a mental health assessment9if paragraphs (2) and (3) are met.
(2) The person must be—
(a)
(a) approved under section 12 of the Mental Health Act 198310; or
(b)
(b) a registered medical practitioner who the supervisory body is satisfied has at least three years post registration experience in the diagnosis or treatment of mental disorder.
(3) The supervisory body must be satisfied that the person has successfully completed the Deprivation of Liberty Safeguards Mental Health Assessors training programme made available by the Royal College of Psychiatrists11.
(4) Except in the 12 month period beginning with the date the person has successfully completed the programme referred to in paragraph (3), the supervisory body must be satisfied that the person has, in the 12 months prior to selection, completed further training relevant to their role as a mental health assessor.
Eligibility to carry out a best interests assessment
5.—(1) A person is eligible to carry out a best interests assessment12if paragraphs (2) and (3) are met.
(2) The person must be one of the following—
(a)
(a) an approved mental health professional;
(b)
(b) a social worker registered with the General Social Care Council;
(c)
(c) a first level nurse, registered in Sub-Part 1 of the Nurses’ Part of the Register maintained under article 5 of the Nursing and Midwifery Order 200113;
(d)
(d) an occupational therapist registered in Part 6 of the register maintained under article 5 of the Health Professions Order 200114; or
(e)
(e) a chartered psychologist who is listed in the British Psychological Society’s Register of Chartered Psychologists and who holds a relevant practising certificate issued by that Society15.
(3) The supervisory body must be satisfied that the person—
(a)
(a) is not suspended from the register or list relevant to the person’s profession mentioned in paragraph (2);
(b)
(b) has at least two years post registration experience in one of the professions mentioned in paragraph (2);
(c)
(c) has successfully completed training that has been approved by the Secretary of State16to be a best interests assessor;
(d)
(d) except in the 12 month period beginning with the date the person has successfully completed the training referred to in sub-paragraph (c), the supervisory body must be satisfied that the person has, in the 12 months prior to selection, completed further training relevant to their role as a best interests assessor; and
(e)
(e) has the skills necessary to obtain, evaluate and analyse complex evidence and differing views and to weigh them appropriately in decision making.
Eligibility to carry out a mental capacity assessment
6. A person is eligible to carry out a mental capacity assessment17if that person is eligible to carry out—
(a) a mental health assessment; or
(b) a best interests assessment.
Eligibility to carry out an eligibility assessment
7. A person is eligible to carry out an eligibility assessment18if that person is—
(a) approved under section 12 of the Mental Health Act 1983 and is eligible to carry out a mental health assessment; or
(b) an approved mental health professional and is eligible to carry out a best interests assessment.
Eligibility to carry out an age assessment
8. A person is eligible to carry out an age assessment19if that person is eligible to carry out a best interests assessment.
Eligibility to carry out a no refusals assessment
9. A person is eligible to carry out a no refusals assessment20if that person is eligible to carry out a best interests assessment.
PART 3
Selection of Assessors
Selection of assessors – relatives
10.—(1) A supervisory body must not select a person to carry out an assessment if the person is—
(a)
(a) a relative of the relevant person21; or
(b)
(b) a relative of a person who is financially interested in the care of the relevant person.
(2) For the purposes of this regulation a “relative” means—
(a)
(a) a spouse, ex-spouse, civil partner or ex-civil partner;
(b)
(b) a person living with the relevant person as if they were a spouse or a civil partner;
(c)
(c) a parent or child;
(d)
(d) a brother or sister;
(e)
(e) a child of a person falling within sub-paragraphs (a), (b) or (d);
(f)
(f) a grandparent or grandchild;
(g)
(g) a grandparent-in-law or grandchild-in-law;
(h)
(h) an uncle or aunt;
(i)
(i) a brother-in-law or sister-in-law;
(j)
(j) a son-in-law or daughter-in-law;
(k)
(k) a first cousin; or
(l)
(l) a half-brother or half-sister.
(3) For the purposes of this regulation—
(a)
(a) the relationships in paragraph (2)(c) to (k) include step relationships;
(b)
(b) references to step relationships and in-laws in paragraph (2) are to be read in accordance with section 246 of the Civil Partnership Act 200422; and
(c)
(c) financial interest has the meaning given in regulation 11.
Selection of assessors – financial interest
11.—(1) A supervisory body must not select a person to carry out an assessment where the person has a financial interest in the case.
(2) A person has a financial interest in a case where—
(a)
(a) that person is a partner, director, other office-holder or major shareholder of the managing authority that has made the application for a standard authorisation23; and
(b)
(b) the managing authority is a care home24or independent hospital25.
(3) A major shareholder means—
(a)
(a) any person holding one tenth or more of the issued shares in the managing authority, where the managing authority is a company limited by shares; and
(b)
(b) in all other cases, any of the owners of the managing authority.
Selection of best interests assessors
12.—(1) A supervisory body must not select a person to carry out a best interests assessment if that person is involved in the care, or making decisions about the care, of the relevant person.
(2) Where the managing authority and supervisory body are both the same body, the supervisory body must not select a person to carry out a best interests assessment who is employed by it or who is providing services to it.
PART 4
Assessments
Time frame for assessments
13.—(1) Except as provided in paragraph (2), all assessments required for a standard authorisation must be completed within the period of 21 days beginning with the date that the supervisory body receives a request for such an authorisation.
(2) Where a supervisory body receives a request for a standard authorisation and the managing authority has given an urgent authorisation under paragraph 76 of Schedule A1 to the Act, the assessments...
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