Schedules Schedule 1: Schedule to be inserted as Schedule AA1 to the Mental Capacity Act 2005 Part 2: Authorisation of arrangements
Paragraph 13 sets out three authorisation conditions which must be satisfied before a responsible body may authorise arrangements. The authorisation conditions are that: (1) the person lacks capacity to consent to the arrangements; (2) the person has a mental disorder; and (3) the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person.
	Paragraphs 14 and 15 require responsible bodies to publish information about authorisation of arrangements under the Schedule and to take steps at the outset of the authorisation process (where arrangements are proposed) to ensure that the cared-for person and any appropriate person understand the process.
	Paragraph 16 requires, after the arrangements are authorised, the responsible body to arrange without delay for a copy of the authorisation record to be given or sent to the cared-for person and any specified representatives. If this has not been done within 72 hours, the responsible body must review and record why not.
	Paragraph 17 sets out that a responsible body may authorise arrangements in accordance with paragraph 18 where the conditions in that paragraph are met. However, where the arrangements are "care home arrangements", the responsible body can decide whether to authorise arrangements in accordance with either paragraph 18 or paragraph 19. "Care home arrangements" are defined in paragraph 3 as arrangements in relation to a person 18 or over, which are carried out wholly or partly in a care home. Both paragraph 18 and paragraph 19 set out conditions which must be satisfied before an authorisation can be given. The conditions in paragraph 19, which apply to care home arrangements, include a role for the care home manager (defined in paragraph 3). In summary, the care home manager arranges the assessments and must provide a statement to the responsible body. Paragraph 20 provides further detail of what the care home manager’s statement to the responsible body under paragraph 19(a) must contain. The requirements under paragraph 20 largely mirror those under paragraph 18.
	Paragraph 21 requires a determination to be made, following a capacity and medical assessment, that the person lacks the capacity to consent to the arrangements, and has a mental disorder, for the purposes of paragraph 13(a)-(b). Sub-paragraph (2) clarifies that the person who completed the determination can be someone different from the person who completes the assessment. Sub-paragraph (3) provides a power to make regulations setting out requirements which must be met for a person to make a determination or carry out an assessment. The requirements will relate to matters such as knowledge and experience. Different requirements may be set out for a person making a determination than a person carrying out an assessment. Sub-paragraph (5) sets out that a person with a prescribed connection with a care home may not undertake the assessments if the authorisation is being determined in accordance with paragraph 19.
	Paragraph 21(8) permits a responsible body or care home manager in making determinations or submitting a statement for that purpose to rely upon assessments carried out previously, including those prepared for another purpose, so long as it is reasonable to do so. Sub-paragraph (9) sets out the factors that the responsible body or care home manager must have regard to when considering whether it is reasonable to rely upon an existing assessment. The intention is that an existing assessment can be relied on, provided that it gives a reliable indication of the person’s current situation.
	Paragraph 22 requires a determination to be made that the arrangements are necessary to prevent harm to the person and proportionate in relation to the likelihood and seriousness of harm to the person, for the purposes of paragraph 13(c). If the arrangements are care home arrangements being authorised in accordance with paragraph 19, the assessment must not be carried out by a person who has a prescribed connection with a care home (sub-paragraph (3)).
	Paragraph 23 sets out who the responsible body or care home manager must consult in order for arrangements to be authorised under Schedule AA1. Sub-paragraph (3) sets out that the main purpose of the consultation is to ascertain the person’s wishes and feelings in relation to the arrangements. Sub-paragraph (4) sets out that this duty to consult only applies to the extent that it is practicable and appropriate to do so.
	Paragraph 24 sets out the process for the pre-authorisation review, which must be arranged by the responsible body and carried out in all cases. This provides the degree of independence as required by case law arising from Article 5 of the ECHR. Sub-paragraph (1) excludes people involved in the day-to-day care or treatment of the person or someone who has a prescribed connection with a care home from carrying out the pre-authorisation review (see paragraph 18(e) and 19(d)). Sub-paragraph (2) sets out that the review must be carried out by an Approved Mental Capacity Professional where it is reasonable to believe that the person does not wish to reside or receive care or treatment in the place provided for by the arrangements, and sub paragraph (3) provides that the views of any relevant person must be considered in making that determination. Sub paragraph (2) also sets out that the review must be carried out by an Approved Mental Capacity Professional where the arrangements provide for the cared-for person to receive care or treatment mainly in an independent hospital, or the case is referred by the responsible body to an Approved Mental Capacity Professional and that person accepts the referral.
	Paragraph 25 sets out that the Approved Mental Capacity Professional must review the information relied on by the responsible body and determine whether the conditions in paragraph 13(a) to (c) have been met. Sub-paragraph (2) sets out that the Approved Mental Capacity Professional must meet with the person if it is appropriate and practicable to do so. The Approved Mental Capacity Professional must also consult with any person listed in paragraph 23(2) and take any other action so far as they consider appropriate in order to make the determination.
	Paragraph 26 requires that where the pre-authorisation review is not carried out by an Approved Mental Capacity Professional, the person carrying out the review must review the information relied on by the responsible body and determine whether it is reasonable for the responsible body to conclude that the authorisation conditions are met.
	Paragraph 27 sets out what must be contained within an authorisation record. Subparagraph (3) provides that where a draft authorisation record has been prepared in accordance with paragraph 18(g) or 20(2)(b)(iii), that draft record becomes the authorisation record and that it supersedes any earlier authorisation record. The authorisation record specifies all arrangements authorised for the person; it is intended that, where different types of arrangements have been included in the authorisation, the record can travel with them between different settings.