Commentary on Sections Part 2 – Lack of Capacity: Protection from Liability, and Safeguards CHAPTER 4 – ADDITIONAL SAFEGUARD: AUTHORISATIONS ETC and CHAPTER 6 – EXTENSION OF PERIOD OF CERTAIN AUTHORISATIONS
Chapter 4 provides for further additional safeguards, including authorisation. This safeguard applies to four types of interventions under the Act. These are explained below. The authorisation process and the criteria for authorisation are set out in Schedules 1 and 2. Schedule 1 covers the authorisation of all interventions that require authorisation except short-term detention in hospital for examination of an illness which is dealt with in Schedule 2. Schedule 1 also makes provision for interim authorisations.
Where an authorisation has been granted under Schedule 1 (other than an interim authorisation), the authorisation can last for up to six months unless revoked. An interim authorisation can last for up to 28 days. An authorisation under Schedule 2 can also last for 28 days. However, the fact that an authorisation has been granted does not mean that the intervention can be carried out if the other safeguards and conditions in Part 2 are no longer met at the time of the intervention. Similarly, in the case of an ongoing intervention requiring authorisation, if the other safeguards or conditions cease to be met, the intervention must also cease.
Chapter 6 (including Schedule 3) provides for the extension of certain authorisations.
Provision is also made in these Chapters requiring new duties to be fulfilled where the person making an application for authorisation or an extension report is of the opinion that P is likely to lack capacity to apply to the Tribunal for a review of the authorisation made in respect of them. A statement to this effect must be made in the application/extension report and, on grant/making, the Attorney General must be notified of such cases so that a referral to the Tribunal under section 47 can be made if necessary. See paragraphs 6(2), 19(4) and 20(7) to Schedule 1, paragraphs 2(5) and 7(2) to Schedule 2, sections 39(3) and 43(6) and paragraphs 4(2) and 9(4) to Schedule 3. The duty also applies to interim authorisations and at the six month point of extensions made under section 38 and Schedule 3 (yearly subsequent extensions) (see section 50). The purpose of these new duties is to ensure that a person’s right to challenge their detention has practical effect where the person lacks or probably lacks capacity to decide whether to make an application to the Tribunal.