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)).
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