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 Section 30 – 34 - Community residence requirements
A community residence requirement is defined in section 31 as a requirement imposed by a HSC trust for P to live at a particular place. A community residence requirement may also include a requirement to allow a healthcare professional access to P or a requirement to attend somewhere for training, education, occupation or treatment (other than treatment which would, or might be, treatment with serious consequences as such requirements are dealt with separately under section 28). The meaning of “healthcare professional” for the purposes of this section will be defined in regulations made under the Act.
The effect of section 30 is that, unless an authorisation has been granted under Schedule 1 in respect of the requirement (and any other relevant conditions under Part 2 met), it cannot be lawfully imposed on P. In other words, D will not be protected from liability under section 9. Any act done to ensure that P complies with the requirement will also not be lawful unless the requirement itself has been authorised. This includes acts done to ensure that P moves to, continues to live at, or resumes living at the place specified in the requirement; or to ensure that P complies with a provision in the requirement requiring P to attend a place, or allow a person access to P. The criteria for authorisation are set out in paragraph 12 to Schedule 1.
Section 30 also requires that a further safeguard is met before the requirement can be lawfully imposed: “the prevention of harm condition”. To meet this condition, D must reasonably believe that failure to impose the requirement would be more likely than not to result in harm to P. This condition also applies to any act done to ensure that P complies with a requirement of this type.
Section 32 provides that where a community residence requirement has been authorised and imposed but it subsequently becomes apparent to the approved social worker in charge of P’s case that any one of the conditions set out in subsection (2) is no longer met, the requirement must be revoked and another requirement cannot be imposed under the same authorisation. Section 33 provides the Department with a regulation making power to impose duties on HSC trusts regarding people who are subject to community residence requirements and their visitation.
Section 34 is intended to clarify for those working under the Act that community residence requirements are not to be regarded as a deprivation of liberty (or restraint) for the purposes of the Act. This is required to avoid any duplication in the authorisation process given that the case law around guardianship under the Mental Health Order (which community residence requirements are intended to replace) and whether it could be a deprivation of liberty or not remains unclear. The reference to restraint is to make it clear that the additional safeguard of authorisation applies to community residence requirements (it does not apply to acts of restraint).