Terms & Conditions

Guide to our Terms & Conditions

Terms & Conditions of Mental Capacity Consult Limited

(1) Mental Capacity Consult Limited incorporated and registered in England and Wales with company number 10515476 whose registered office is at 198 St Williams Way, Rochester, Kent ME1 2PF (Consultant)
(2) The Individual or Organisation set out in the Schedule (“Client”)

1.1 The definitions and rules of interpretation in this clause apply in this agreement (unless the context requires otherwise).
(a) Brief means briefs to provide the Services as communicated by the Client to the Consultant from time to time
(b) Business of the Consultant: means:
(i) The assessment of mental capacity in line with the Mental Capacity Act 2005 (associated guidance and relevant case law;
(ii) The assessment of mental state in line with current accepted guidelines and good practice;
(iii) Training of both individuals and groups in all areas related to mental capacity, mental health and any other area that is deemed appropriate
(c) Business Opportunities: any opportunities which the Consultant becomes aware of during the Engagement which relate to the Business of the Client
(d) Client Property: all documents, books, manuals, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the Business of the Client or its customers and business contacts which are provided by the Client or produced by the Consultant during the Engagement, and any equipment, keys, hardware or software provided for the Consultant’s use by the Client during the Engagement
(e) Confidential Information: Information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, clients, products, affairs and finances of the Client, together with any details whatsoever relating to any individual to whom the Consultant is referred to provide mental capacity assessments and/or mental state assessments for clients of the Client
(f) Engagement: The engagement of the Consultant by the Client on the terms of this agreement
(g) Fees: The fees for the Services set out in the Schedule
(h) Insurance Policies: Professional Indemnity insurance to be taken out by the Consultant
(i) Intellectual Property Rights: All patents, copyright, trademarks, design rights and related rights
(j) Services: The services provided by the Consultant in a consultancy capacity for the
Client as more particularly described in the Schedule
(k) Works: All records, reports, documents, papers, drawings, designs, and all other materials in whatever form prepared by the Consultant in the provision of the Services
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it, and all guidance and associated codes.
1.3 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.4 The Schedule to this agreement forms part of (and is incorporated into) this agreement.

2.1 The Client shall engage the Consultant and the Consultant shall provide the Services on the term of this agreement.
2.2 The Client shall notify the Consultant in the event that a suitable opportunity arises for the Consultant to provide Services under a Brief, and if the Consultant is available to perform such Services, the Consultant agrees to do so on the terms set out in this Agreement for the fees set out in the Schedule for such Brief.
2.3 The Engagement shall commence on the date of signature of this Agreement and shall continue unless and until terminated:
(a) as provided by the terms of this agreement; or
(b) by either party giving to the other not less than 6 weeks prior written notice.

3.1 There is no obligation on the Client to provide the Consultant with any work or fees under this Agreement.
3.2 During the Engagement the Consultant shall:
(a) provide the Services with all due care, skill and ability and use his best endeavours to promote the interests of the Client;
(b) Promptly give to the Client all such information and reports as it may reasonably require in connection with matters relating to the provision of the Services or the Business of the Client.
3.3 The Consultant shall use reasonable endeavours to ensure that he is available on reasonable notice to provide the Services.
3.4 Unless he has been specifically authorised to do so by the Client in writing, the Consultant shall not:
(a) have any authority to incur any expenditure in the name of or for the account of the Client
(b) Hold himself out as having authority to bind the Client.
3.5 During the Engagement, the Consultant shall at all times ensure that:
(a) All their Assessors maintain their professional registrations with whichever bodies they are members of at the time of hiring;
(b) Maintains an enhanced DBS check at least annually of all their assessors;
(c) Complies with all applicable laws, regulations and codes relating to the Services, including but not limited to the Mental Capacity Act 2005, NMC Code of Conduct and Data Protection Act 1998;
(d) Complies with all reasonable standards of safety and comply with any instructions of the Client or its own customers and clients where the Services are provided.
3.6 The Consultant undertakes to the Client that during the Engagement he shall take all reasonable steps to offer to the Client any Business Opportunities if they come to his attention.
3.7 Due to the sensitive and confidential nature of the Services, the Consultant may not use any third party to perform any administrative, clerical or secretarial functions to provide any necessary reports or documentation arising as a result of the Services.
3.8 The Consultant shall comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010.

4.1 If the Consultant fails to perform the Services to the Client’s satisfaction or by the applicable dates, the Client shall, without limiting its other rights and remedies, have one or more of the following rights:
(a) to terminate this agreement with immediate effect by giving written notice to the Consultant;
(b) to refuse to accept any subsequent performance of the Services which the Consultant attempts to make;
(c) to recover from the Consultant any costs incurred by the Customer in obtaining substitute services from a third party;
(d) where the Client is forced to refund customers, who have paid in advance for the Services that have not been provided by the Consultant, to have such sums refunded by the Consultant; or
(e) to claim damages for any additional costs, loss or expenses incurred by the Client which are in any way attributable to the Consultant’s failure to meet such dates.
4.2 The remedies in clause 4.1 shall extend to any substituted or remedial services provided by the Consultant.
4.3 The Client’s rights under this agreement are in addition to its rights and remedies implied by statute and common law

5.1 The Client shall pay the Consultant the Fees for such Services that have been performed to
the Client’s satisfaction, subject to receiving a valid invoice from the Consultant. Fees will be paid within 15 days after the receiving the Consultant’s invoice.
5.2 Payment in full or in part of the fees claimed under clause 5 or any expenses claimed under clause 6 shall be without prejudice to any claims or rights of the Client against the Consultant in respect of the provision of the Services.

6.1 The Client shall not be entitled to receive expenses incurred by the Consultant in the course of the Engagement, unless the Client has given its prior approval to such expenses.
6.2 For each Brief, the costs of any transport, fuel or car costs incurred by the Consultant in his or her own vehicle shall be met by the Consultant, unless otherwise agreed with the Client.

7.1 Nothing in this agreement shall prevent the Consultant from being engaged, concerned or having any financial interest in any Capacity in any other business, trade, profession or occupation during the Engagement provided that:
(a) such activity does not cause a breach of any of the Consultant’s obligations under this agreement;
(b) the Consultant shall not engage in any such activity if it relates to a business which is similar to or in any way competitive with the Business of the Client without the prior written consent of the Client

8.1 The Consultant acknowledges that in the course of the Engagement he will have access to Confidential Information. The Consultant has therefore agreed to accept the restrictions in this clause 8.
8.2 The Consultant shall not (except in the proper course of his duties), either during the Engagement or at any time after the Termination Date, use or disclose to any third party any Confidential Information. This restriction does not apply to:
(a) any use or disclosure authorised by the Client or required by law; or
(b) any information which is already in, or comes into, the public domain otherwise than through the Consultant’s unauthorised disclosure.
8.3 At any stage during the Engagement, the Consultant will promptly on request return all and any Client Property in his possession to the Client.
8.4.1 During the Engagement, and for 6 months thereafter, the Consultant shall not, whether directly or indirectly, provide any services similar to the Services to or for the benefit of any client, customer or contact to whom the Consultant had been introduced by the Client during the preceding 12 months.

9.1 The Consultant consents to the Client holding and processing data relating to him for legal, personnel, administrative and management purposes and in particular to the processing of any “sensitive personal data” (as defined in the Data Protection Act 1998) relating to the Consultant.
9.2 In the course of providing the Services, the Consultant may have access to sensitive personal data and other personal data relating to individuals in respect of whom the Consultant provides mental health capacity assessments and other issues arising from the provision of Services.
9.3 The Consultant agrees that it shall ensure that all data which is disclosed to him, or which arises as a result of providing the Services (“Data”), is kept secure, free from theft or unauthorised access.
9.4 The Consultant shall keep Data in a secure storage format, which must be separated from any other data held on a computer or other electronic medium. The Consultant shall not keep Data on a laptop or other mobile device without the prior written consent of the Client. On request and on the Termination Date, the Consultant shall return all Data to the Client and shall destroy all copies held by him.
9.5 Where the Consultant holds, processes and sends Data on mental capacity assessments through a computer or other electronic medium, he must ensure that all Data (and in particular, any data relating to mental capacity assessments, clients and individuals on whom the Consultant is providing mental capacity assessments) is password protected, and only held on an encrypted computer or other electronic medium.
9.6 The Consultant shall co-operate and give assistance to the Client in the event of any request or query relating to the data held by the Consultant, including without limitation a data subject request.

10.1 The Consultant hereby assigns to the Client all existing and future Intellectual Property Rights in the Works to the fullest extent permitted by law. Insofar as they do not vest automatically by operation of law or under this agreement, the Consultant holds legal title in these rights on trust for the Client.
10.2 The Consultant waives any moral rights in the Works to which he is now or may at any future time be entitled under Chapter IV of the Copyright Designs and Patents Act 1988 or any similar provisions of law in any jurisdiction, including (but without limitation) the right to be identified, the right of integrity and the right against false attribution, and agrees not to institute, support, maintain or permit any action or claim to the effect that any treatment, exploitation or use of such Works or other materials infringes the Consultant’s moral rights.
10.3 The Consultant shall, promptly at the Client’s request, do (or procure to be done) all such further acts and things and the execution of all such other documents as the Customer may from time to time require for the purpose of securing for the Customer the full benefit of the Contract, including all right, title and interest in and to the Intellectual Property Rights assigned to the Customer in accordance with clause 10.1.

11.1 The Consultant shall have personal liability for and shall indemnify the Client for any loss, liability, costs (including reasonable legal costs), damages or expenses arising from any breach by the Consultant of the terms of this Agreement including any negligent or reckless act, omission or default in the provision of the Services.
11.2 The Client shall notify the Consultant of any material terms of the Insurance Policy taken out in respect of the Business Activities, and the Consultant shall comply with all such terms and conditions of the Insurance Policies at all times.

12.1 Notwithstanding the provisions of clause 2.3, the Client may terminate the Engagement with immediate effect with no liability without any reason. The Consultant may also terminate the engagement with immediate effect without any reason.
12.2 The rights of the Client and Consultant under clause 12.1 are without prejudice to any other rights that it might have at law to terminate the Engagement. Any delay by the Client or Consultant in exercising its rights to terminate shall not constitute a waiver of these rights.

13.1 On the Termination Date the Consultant shall:
(a) immediately deliver to the Client all Client Property in his possession or under his control;
(b) irretrievably delete any information relating to the Business of the Client stored on any magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control outside the premises of the Client; and
(c) provide a signed statement that he has complied fully with his obligations under this clause 13.

14.1 The Client may from time to time ask the Consultant to provide some or all of the following Services, as part of a Brief. Briefs may be communicated by phone, or by email. Once the Consultant has agreed to a Brief, such Brief will fall under this Agreement and the Consultant agrees to provide such Services in accordance with this Agreement and this Schedule.
(a) Provision of Lasting Power of Attorney (LPA) Certificate.
This will be for both types of LPA, Property and Financial Affairs and Health and Welfare. The Consultant will qualify as a certificate provider under Category B – Skills section. The Consultant will ensure that the person making the LPA (the Donor) has the capacity to do so. They will assess capacity in line with the Mental Capacity Act (2005), associated guidance and any relevant case law. In doing so they will ensure that they are happy that the donor;
1) Understands what an LPA is and the contents of their LPA
2) Understands what powers they are giving to their attorneys appointed under the LPA
3) Is not being pressured or tricked into making the LPA or under any other form of duress
4) That there is nothing else that would prevent the LPA being made
(b) Assessment of Testamentary capacity
This will be primarily for (but not limited to) Last Will and Testaments. The Consultant will assess the client’s mental capacity in accordance with the Mental Capacity Act (2005) and associated guidance as well as any other relevant case law.
(c) Court of Protection assessments
The Consultant will assess the client’s mental capacity in relation to the specific decision being requested by the Court of Protection. In doing so, the Consultant will assess capacity in accordance with the Mental Capacity Act (2005) and associated guidance as well as any other relevant case law. They will also be required to complete the relevant paperwork which is to be done at the time of the assessment and in accordance with any Court of Protection guidance.
(d) Provision of Court reports
On occasions, the Consultant will be asked to submit a court report regarding their assessment of capacity. The report is to be contemporaneous and follow the relevant guidance relating to the completion of such reports. Regardless of whether a report is requested at the time, it is the expectation that the Consultant will make their own contemporaneous record of each assessment to ensure that should a report be required at a later date, they are able to so provide.
(e) Deprivation of Liberty Safeguarding Assessments
Only for those who are qualified Deprivation of Liberty (DoLS) Best Interest Assessors. Assessors will be expected to assess whether a Deprivation of Liberty has occurred and complete appropriate paperwork, in line with current Mental Capacity Act (2005), DoLS guidance and any relevant case law.
(a) Reporting procedure: The Consultant will follow any standardised report or template for giving reports which is provided by the Client. The Consultant will send his or her reports on mental capacity assessments to the Client directly.
(b) Time deadlines: For all assessments and reports requested by the Client, the Consultant must provide the assessment, write and return the report within 10 working days of the assessment by the Consultant. (or sooner if agreed with the Client)
(c) For Urgent assessments, the Consultant must return the completed report to the Client within 3 working days of completing the assessment. Please note that all urgent assessment carries extra charges agreed between the Client and Consultant before the assessments are commenced.
In the event that the Client returns any reports to the Consultant for changes to be made, the Consultant must make those changes and return the report to the Client within 2 working days.

15.1 The relationship of the Consultant to the Client will be that of independent contractor and nothing in this agreement shall render him an employee, worker, agent or partner of the Client and the Consultant shall not hold himself out as such. The Consultant confirms that the Engagement is to provide ad-hoc Services as and when required by the Client.

16.1 Notices
(a) Any notice given under this agreement shall be in writing and signed by or on behalf
of the party giving it and shall be served by delivering it personally or sending it by pre-paid recorded delivery or registered post to the relevant party at (in the case of the Client) its registered office for the time being and (in the case of the Consultant) his last known address. Any such notice shall be deemed to have been received:
(i) if delivered personally, at the time of delivery;
(ii) in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting
(b) In proving such service, it shall be sufficient to prove that the envelope containing the notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post.
16.1.1 Entire Agreement. Each party acknowledges and agrees with the other party that this Agreement together with any documents referred to in it constitutes the entire agreement and understanding between the Consultant and the Client and supersedes any previous arrangement, understanding or agreement between them relating to the Engagement.
16.1.2 Variation. No variation of this agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties.
16.1.3 Governing Law and Jurisdiction. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

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