MCA 2005 s37

Law as at 1/5/09

Part I contents: 1, 2, 3, 4, 4A, 4B, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 16A, 17, 18, 19, 20, 21, 21A, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 39A, 39B, 39C, 39D, 39E, 40, 41, 42, 43, 44

All Parts: I, II, III, Schedules

Without commentary: Plain text,


Provision of serious medical treatment by NHS body

37.—(1) This section applies if an NHS body-

(a) is proposing to provide, or secure the provision of, serious medical treatment for a person ("P") who lacks capacity to consent to the treatment, and
(b) is satisfied that there is no person, other than one engaged in providing care or treatment for P in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in P's best interests.

(2) But this section does not apply if P's treatment is regulated by Part 4 [or 4A][1] of the Mental Health Act.

(3) Before the treatment is provided, the NHS body must instruct an independent mental capacity advocate to represent P.

(4) If the treatment needs to be provided as a matter of urgency, it may be provided even though the NHS body has not been able to comply with subsection (3).

(5) The NHS body must, in providing or securing the provision of treatment for P, take into account any information given, or submissions made, by the independent mental capacity advocate.

(6) "Serious medical treatment" means treatment which involves providing, withholding or withdrawing treatment of a kind prescribed by regulations made by the appropriate authority.

(7) "NHS body" has such meaning as may be prescribed by regulations made for the purposes of this section by-

(a) the Secretary of State, in relation to bodies in England, or
(b) the National Assembly for Wales, in relation to bodies in Wales.


  1. Mental Health Act 2007 s35, wef 3/11/08