Commentary on Sections Part 2 – Lack of Capacity: Protection from Liability, and Safeguards Chapter 5 – Additional Safeguard: Independent Mental Capacity Advocate Sections 35 and 36 – Independent mental capacity advocate
Sections 35 and 36 have the effect that, where Part 2 requires an intervention to be authorised or where, although not requiring authorisation, it is a serious compulsory intervention, the independent mental capacity advocate conditions must be met (and any other safeguards that apply) for the defence in section 9 to apply, unless the situation is an emergency, or P has made a declaration declining the services of the independent mental capacity advocate (explained further in Part 4 of the Act). The independent mental capacity advocate must be in place to represent and support P when the question of what is in P’s best interests is being determined by D. Where practicable and appropriate, D must consult the independent mental capacity advocate and take account of the advocate’s views in relation to what would be in P’s best interests (see section 7(7)).