I have a case where NR lacks capacity with regards to NR powers but is accessed to have capacity to delegate his powers.
He is clear he wants to delegate to the local authority not any of the family members.
The guidance says NR can delegate to a person, so I was unclear whether they can delegate to a nominated person in the Local Authority
We had a similar case and the Court made an order for the NR role to be an officer of the council and left it to the LA who that person would be
I am just trying to work out whether we can avoid the need for a court application. As if an officer of the LA can be chosen to delegate the powers to a displacement application won’t be necessary. But the guidance is not clear
It was a very unusual case but we were told a court order would be required so it had to go to court
Richard Jones (para 2-118 in the MHA Manual 24th edition, general note to regulation 24 of the Mental Health (Hospital)(England) Regulations 2008 ) suggests that there might be a problem relating to the legal principle delegatus non potest delegare: i.e. delegation of the role to a local authority cannot work in these circumstances because the LA cannot further delegate the NR functions to an officer of the authority. Presumably the current NR could lawfully nominate a named official who happened to be an officer of the LA but I suppose that is an absurd suggestion!
I’ve seen individual LA staff members be named as NR by the court. Not the LA itself or their role within it. I would always raise an eyebrow. One of the people so named left the employ of the LA soon afterwards. Never did find out what happened to their status as NR.
…presumably the officer leaving LA employment would, in law, take their NR status with them. It’s a bit awkward in practical and ethical terms isn’t it?
Court appointment to a named individual in a local authority is a nightmare as Mat has said. It will sit with the individual and not the post, so if they leave their post, the only way to remove their status is to return to court.
And delegation can’t be to a post, and I would never permit an individual to take on the role due to the fact that it by-passes the professional role that is implied with the appointment.
I realise that appointment of the Director of Adult Social Services as acting NR is deeply problematical, and many local authorities have explored alternatives (including me, some years ago). No one has come up with a satisfactory alternative in the current legislative context.
Thank you all. That was my view too. Off to court we go
Could the power be delegated to a local authority with the power being exercised by a named officer under the authority’s scheme of delegation?
Steve, that’s what I was trying to encapsulate in my raised eyebrow.
Given that S116(c) imposes specific duties on LAs carrying out the function of NR, could it be argued that a delegation to a LA, rather than appointment by court, would be seen as a deliberate attempt to avoid a specific responsibility to be expected of LAs acting as NRs? And so avoided.
Delegation might avoid going to court and all the time/money involved in that, but what assurance would a person have that the LA would do anything with the role? LAs these days tend to do nothing unless they have a clear legal requirement to do something, and they struggle to keep up with those requirements (DoLS waiting lists, placement reviews etc etc). Despite good intentions of individual staff members I doubt many LAs would counteance the idea of taking on a responsibility when they have no legal obligation to do so. At least S116 would provide a framework of accountability.