Adult Social Care Glossary, v 0.6

Adjustment of the obligation to make arrangements imposed by section 35 of the Act

2. Arrangements made by the Secretary of State under section 35 of the Act may include such provision as she considers reasonable for the purpose of enabling IMCAs to be available to represent and support persons in the circumstances specified in regulation 3 or 4.

Review of arrangements as to accommodation

3.—(1) The circumstances specified in this regulation are where—
(a) qualifying arrangements have been made by an NHS body or local authority as to the accommodation of a person (“P”) who lacks capacity to agree to the arrangements;
(b) a review of the arrangements is proposed or in progress (whether under a care plan or otherwise);
(c) the NHS body is satisfied, or the local authority are satisfied, that there is no person, other than a person engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P’s best interests;
(d) none of the following exist—
(i) a person nominated by P (in whatever manner) as a person to be consulted in matters affecting his interests,
(ii) a donee of a lasting power of attorney created by P,
(iii) a deputy appointed by the Court of Protection for P, or
(iv) a donee of an enduring power of attorney (within the meaning of Schedule 4 to the Act) created by P; and
(e) sections 37, 38 and 39 of the Act do not apply.

(2) In this regulation—
“accommodation” means—
(a) accommodation in a care home or hospital, or
(b) residential accommodation provided in accordance with—
(i) section 21 or 29 of the National Assistance Act 1948, or
(ii) section 117 of the Mental Health Act 1983,
as the result of a decision taken by a local authority under section 47 of the National Health Service and Community Care Act 1990;
“care home” and “hospital” have the same meaning as in section 38 of the Act; and
“qualifying arrangements” means arrangements—
(a) under which accommodation has been provided for P for a continuous period of 12 weeks or more, and
(b) which are not made as a result of an obligation imposed on P under the Mental Health Act 1983.

Adult protection cases

4.—(1) The circumstances specified in this regulation are where—
(a)an NHS body proposes to take or has taken, or a local authority propose to take or have taken, protective measures in relation to a person (“P”) who lacks capacity to agree to one or more of the measures;
(b) the proposal is made or the measures have been taken—
(i) following the receipt of an allegation or evidence that P is being, or has been, abused or neglected by another person or that P is abusing, or has abused, another person, and
(ii) in accordance with arrangements relating to the protection of vulnerable adults from abuse which are made pursuant to guidance issued under section 7 of the Local Authority Social Services Act 1970(10); and
(c) none of the following provisions apply—
(i) section 37, 38 or 39 of the Act, or
(ii) regulation 3 of these Regulations.

(2) The reference to protective measures in relation to P includes measures to minimise the risk that any abuse or neglect of P, or abuse by P, will continue.