Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) (Wales) Regulations 2009

In force 1/4/09.

Explanatory note

1. The Mental Capacity Act 2005 (“the Act”) provides that people who lack capacity to consent to arrangements proposed for their care or treatment in care homes and hospitals may be lawfully deprived of their liberty providing it is authorised in accordance with the Act. Authorisation is to be given by supervisory bodies. These regulations confer supervisory functions in relation to hospitals on Local Health Boards.

2. Where authorisation is given to deprive any person of their liberty the Act requires that the supervisory body must appoint a representative for that person. These regulations provide for the selection and appointment of representatives.

3. These regulations—

(a) confer supervisory functions in relation to hospitals on Local Health Boards and provide for joint working arrangements (regulation 3);

(b) make provisions about the circumstances in which a person will be eligible to be a representative (regulation 6);

(c) provide for a relevant person to select a person as his or her representative (regulation 7);

(d) provide that where a relevant person has a donee of a Lasting Power of Attorney or Court appoint deputy that donee or deputy may select a representative providing it is within the scope of his or her authority (regulation 8);

(e) provide for the best interests assessor to approve a representative who is selected by the relevant person, donee or deputy or select a representative him or herself (regulations 9 and 10);

(f) provide for the supervisory body to select a representative if one cannot be selected by other means (regulation 11);

(g) provide for the supervisory body to appoint a representative who has been selected and for notice of the appointment to be given to interested persons (regulation 12 and 13);

(h) provide for the termination of appointment of the representative (regulation 14);

(i) require the managing authority to notify the supervisory body if the representative is not acting in the best interests of the relevant person or is not keeping in regular contact (regulation 15);

(j) provide for representatives to be paid (regulation 17).

4. Regulations 18 and 19 are transitional provisions which amend the Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (Wales) Regulations 2007 (SI 2007/852 (W.77). These regulations provide that Local Health Boards will also be responsible for making arrangements for Independent Mental Capacity Advocates to be available to act where the relevant person is, or may be subject to a standard authorisation and that person has no other person who may be consulted about what is in his or her best interests (regulation 18 and 19).

5. A full impact assessment has not been produced for this instrument as no significant impact on the private or voluntary sector is foreseen.