A new legislative framework for mental capacity and mental health legislation in Northern Ireland: an analysis of the current proposals

The CRPD and mental health law reform in Scotland

The roots of mental incapacity and mental health legislation in England and Wales are deeply intertwined. Changes in healthcare policy, human rights principles, demographics and social attitudes have highlighted deficiencies in the law to protect the interests and rights of people considered to lack decision-making capacity. This led to calls for legal reform from social workers amongst other groups. The Mental Capacity Act 2005 took shape alongside the more controversial Mental Health Act 2007. Whilst mental capacity and mental health legislation are separate once again, both are concerned with the care and treatment of adults who are perceived as lacking capacity to make specific decisions. The Deprivation of Liberty Safeguards enacted as part of the Mental Health Act 2007 to amend the Mental Capacity Act 2005 will change practice for many social workers as they will give rise to new assessments and roles. Social workers will need to be aware of the potential interaction of the two Acts to ensure compliance with the laws and to promote positive practice. This article explores the interface between the Mental Capacity Act 2005 and Mental Health Act 2007 in England and Wales and examines and speculates on some of the possible implications for social work practitioners.

Unified mental health and capacity law: Creating parity and non-discrimination?

Capacity and incapacity: An appropriate border for non-consensual interventions?

The Bamford Review of Mental Health and Learning Disability (Northern Ireland) was established in October 2002 to examine all aspects of the law, policy and provisions that affect people with mental health needs or a learning disability in Northern Ireland. Its report A Comprehensive Legislative Framework, which deals with the reform of law in this area, proposes significant change to mental health law, which is largely welcome. This article outlines some of those key changes and preliminary thoughts regarding the impact of some of the specific proposals on children and young people with mental health problems in Northern Ireland, highlighting those areas that warrant particular attention. Particular comment is made on current legislation and concerns regarding the funding and provision of child and adolescent services in Northern Ireland. Proposals in the Framework for the introduction of capacity legislation and the impact of such on children and young people with mental health problems are examined in light of recent legislative changes in Great Britain. Comment is also made on the need for significant changes in the law and policy regarding the provision of services and support to those children and young people with a personality disorder.

There has been much debate about mental health law reform and mental capacity legislation in recent years with the UN Convention on the Rights of Persons with Disabilities also having a major impact on thinking about the issue. This edited volume explores the concept of 'coercive care' in relation to individuals such as those with severe mental illnesses, those with intellectual and cognitive disabilities and those with substance use problems. With a focus on choice and capacity the book explores the impact of and challenges posed by the provision of care in an involuntary environment. The contributors to the book look at mental health, capacity and vulnerable adult's care as well as the law related to those areas. The book is split into four parts which cover: human rights and coercive care; legal capacity and coercive care; the legal coordination of coercive care and coercive care and individuals with cognitive impairments. The book covers new ground by exploring issues arising from coercion to a variety of persons with vulnerabilities by reason of different disabilities, all of which have in common that the capacity to provide consent to treatment and care is impaired by reason of their condition.

This chapter focuses on two large-scale legal changes that have occurred in England and Wales since the publication of the first edition of this text, the Mental Capacity Act 2005, and the Mental Health Act 2007. Mental health law is concerned with the management of people who are afflicted with poor mental health. Mental health legislation, like all European legislation, is subject to the European Convention on Human Rights. Mental capacity was hardly mentioned in psychiatric books in the twentieth century; it is everywhere and causing some confusion. An approved clinician may be a doctor or other mental health professional who has had specialized training. The pre-2007 Mental Health Act 1983 contained various ‘exclusions whereby a person might not be treated as suffering from a mental disorder by reason only of promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.’.

Except for the criminal justice system, the Mental Health Act 1983 (as amended by the MHA 2007) is the most significant Statute in England and Wales that can be used to challenge a central principle of democratic society, that of the right of an adult to self-determination. Such legislation is considered necessary as there are circumstances when it is right and appropriate to admit individuals to hospital and<br />to treat them for their mental disorders in the absence of their consent. The need for an option of nonconsensual treatment for a physical illness is also apparent, such as in the case of unconsciousness where, for example, treatments without consent for diabetic coma or cerebral haemorrhage are likely to be lifesaving.<br />Whether the treatment is for a mental or physical disorder, the question is the same – when is it appropriate for someone else to take a decision on behalf of another? The paper of Szmukler et al and their proposal for what they refer to as ‘fusion’ legislation goes to the heart of the issues. What are mental health and mental capacity legislation there to do? What are the principles that should underpin such legislation? What safeguards should there be? In this paper the Szmukler proposals as set out are considered from a clinical perspective in the light of studies that have examined model capacity-based mental health legislation, internationally-based principles that should guide mental health law, and other proposals such as those of the Bamford report in Northern Ireland. Whilst the approach that is proposed is non-discriminatory and ethically defensible and desirable, the difficult issue is the balancing of the need for such legislation to be both versatile and non-bureaucratic and the need for an appropriate hierarchy<br />of safeguards that protect the vulnerable from unnecessary or inappropriate interventions. The proposed Bill put forward moves away from the thinking behind the Mental Capacity Act 2005 and is closer in its thinking to an expanded and capacity-based Mental Health Act. This requires further consideration.

Mental health and capacity laws in Northern Ireland and the COVID-19 pandemic: Examining powers, procedures and protections under emergency legislation

For the first time in the UK, the Mental Health (Care and Treatment) (Scotland) Act 2003 introduced a capacity-based criterion for compulsory treatment or detention under the law, namely, impaired ability to make medical decisions. This followed the introduction of the Adults with Incapacity (Scotland) Act 2000. This is significantly different from England which has two separate Acts like Scotland but there is a lack of a capacity criterion in the Mental Health Act 2007. In Northern Ireland a Bill being put before the Assembly in 2011 aims to combine mental health and capacity laws as one piece of legislation, which will be the first of its kind in the world. This paper explores the concept of capacity in relation to mental illness, looks at the three approaches to legislation in the UK and draws together ideas around the pros and cons of using capacity criteria in mental health legislation.

Mental health and capacity law can often feel complex and bewildering. They are governed by a range of different legal frameworks, including (but not limited to) the Mental Health Act 1983 (MHA), the Mental Capacity Act 2005 (MCA), and the Human Rights Act 1998 (HRA). Each legal framework comes with its own unique set of legal principles and ideological baggage, and is also subject to the constant ebb and flow of case law. Last year alone saw major judgments handed down on, for example, the interface between the MHA and MCA,1 the zone of parental responsibility in relation to 16 and 17 year olds,2 and deprivation of liberty in intensive care settings.3 The legal frameworks are also subject to frequent legislative reform; most recently the Police and Crime Act 2017, which reformed police powers under sections 135 and 136 of the MHA and the duties of coroners to investigate the deaths of people who were subject to the Deprivation of Liberty Safeguards (DoLS). Even the judiciary and specialist legal practitioners struggle to keep abreast of the changes. However, mental health and mental capacity law is not ‘lawyers’ law’, in the sense that it is not primarily played out in the courtroom. It is written overwhelmingly for front-line health and social care professionals (and in the case of the MCA, family and other unpaid carers), most of whom will have had no formal legal training. The question, therefore arises, how can busy professionals become and remain fully conversant with these complex and fluctuating legal frameworks?

This chapter begins with the historical developments that put mental health and capacity law into context, then moves on to the relationship to other areas of law. It describes the principles, and the roles of professionals and relatives. It goes on to explain the procedures for using civil powers, and civil admission for treatment. Consent to treatment, leave from hospital, civil community treatment, and after-care. The chapter then details police powers under mental health law, court-ordered pre-sentence assessment and sentence of treatment, alongside other court orders. Transfer from prison to treatment is included, with restriction orders, then appeals against treatment and detention is outlined. The subsequent section outlines human rights law, the European Convention of Human Rights, misuse of mental health law, and finishes with mental capacity laws.

The increasingly complex interface between the Mental Health Act 1983 and the Mental Capacity Act 2005 has been discussed in this column over the last three months. The boundaries between the two statutes is becoming increasingly blurred with the Court of Protection, a specialist court that considers cases about people lacking decision-making capacity, commonly being asked to make decisions on mental health law as well. Northern Ireland is proposing to resolve the interface problem by repealing its mental health laws and replacing them with a single statutory framework for mental capacity law. If passed, it will give all adults with capacity the right to consent to or refuse any form of treatment. Physical and mental conditions will be on an equal footing and there would be no compulsory detention or treatment of adults with capacity. For those whose lack capacity, treatment will be available in their best interests with arrangements in place to authorise situations where the care arrangements amount to a deprivation of liberty. In this article Richard Griffith considers the new proposals for Northern Ireland and wonders where these proposals point the way for the other devolved nations to develop their mental health and mental capacity law for a 21st century Britain.

Mental health and capacity laws applicable to children and young people in Northern Ireland (NI) lack clarity and coherence, with significant gaps in service provision and safeguarding. Drawing on an examination of such laws, we argue that law reform is needed. In the short term, we suggest there is merit in publishing statutory guidance, such as a Code of Practice, to address both the issue of evolving capacity in children and to facilitate best practice in policy and practice. This modest reform in the short term should be accompanied by a firm political commitment to ensuring that NI’s innovative fusion mental capacity legislation is fully brought into force in the medium term. Meanwhile, law reform should form part of a holistic approach on the part of NI’s policy-makers towards improving mental healthcare provision for children and young people in line with a human rights-based approach. This would include the following: increased allocation of funding and resources to facilitate more timely access to suitable treatment and related services; enhancing participation in policy, judicial, and clinical decision-making that impacts their lives; and employing a range of executive accountability mechanisms to drive improvements in such provision over time.

Mental health legislation and human rights in England, Wales and the Republic of Ireland