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

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

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.

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?

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.

The Convention on the Rights of Persons with Disabilities (CRPD) requires a reconceptualised approach to rights enjoyment by persons with mental disabilities promoting equality through support, institutional and environmental adjustments, and envisaging ‘protection’ in terms of all rights enablement and not rights restriction. Mental health and capacity law has tended to focus exclusively on authorizing and regulating non-consensual interventions, contrary to the CRPD message. Scotland’s current mental health and capacity law is no different. The terms of reference of the 2019–22 independent review of this law included making recommendations on CRPD realization. The resultant recommendations sought to strengthen the voice of persons with mental disabilities, reduce psychiatric coercion, and secure the enjoyment of all rights whilst providing an aspirational but workable basis for achieving CRPD alignment. It proposed a new model for mental health and capacity law, centred on reconceptualising mental health and capacity law to take account of realization of all categories of human rights, equality in the enjoyment of such rights, and reduction of non-consensual measures. This article will consider the practical and conceptual CRPD implementation challenges faced by Scotland and other countries, and the Review’s recommendations, seeking to address them in their wider context.

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.

<p>When the Bamford Review of Mental Health and Learning Disability completed its work in the autumn of 2007, it drew to a close an extensive consultation and analysis of mental health and learning disability services and the law in Northern Ireland. Its last report on A Comprehensive Legislative Framework made<br />a compelling case for a major overhaul of the law that the Review team itself described as ‘quite radical’. The Review identified the case for reform in the need to ensure that mental health law conforms to the requirements of human rights law, reflects changes to professional practice, reflects the needs of service<br />users and their carers, and keeps pace with reform elsewhere in the UK. Alone of all the jurisdictions in the UK, Northern Ireland has been operating largely in a legislative vacuum in relation to mental capacity law. The Review’s proposals for reform therefore extended to reform of mental health law and the introduction of mental capacity law.</p><p>In the autumn of 2008 the NI Executive published its response to the Bamford Review indicating that it intended to develop the law sequentially: reform of the Mental Health (NI) Order 1986 by 2011 followed by the introduction of mental capacity law in 2014. Responses to the Executive’s consultation resulted in<br />the Department of Health Social Services and Public Safety (DHSSPS) revising its approach and it signalled its intention to bring forward mental capacity and mental health legislation together. This reated a unique opportunity in Northern Ireland for fusion of incapacity and mental health legislation. A further consultation paper was issued in January 2009, setting out the key approaches to the content<br />of two bills. However as a result of the consultation, the Health Minister Michael McGimpsey announced in September 2009 that there would be a single bill with an overall principle of autonomy. His press statement noted: “ A strong body of opinion, particularly from professional groups and lead voluntary organisations, which considered that separate mental health legislation continues to be stigmatising and recommended that mental capacity and mental health provisions should instead be encompassed into a single piece of legislation”</p><p>This short paper provides an overview of the current direction of travel on law reform in Northern Ireland. It comments on the policy climate and arguments for a fusion of mental capacity and mental health legislation. It also highlights some of the key policy issues that will need to be further explored as the Department develops its law reform proposals and concludes with some hopes and fears for the new legislation.</p>

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

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.’.

In Northern Ireland, the current main legal framework for compulsory intervention is the Mental Health (Northern Ireland) Order 1986. It is a traditional mental health law which enables detention in hospital if mental disorder and risk criteria are met. However, under Article 3(2), it states that people should not be detained "by reason only of personality disorder". There has been a process of law reform in Northern Ireland to create a non-discriminatory, comprehensive legal framework for all. This resulted in the Mental Capacity Act (Northern Ireland) 2016. The Act, when fully implemented, will replace the Order for everyone aged 16 and over, which is in contrast to most other countries where there are both mental health and mental capacity laws. Under the new Act there are no specific exclusions so, if a person is unable to make the relevant decision, including if the cause of impairment relates to issues associated with personality disorder, then compulsory intervention is allowed as long as the proposed intervention is in the person's 'best interests'. The Act was partially implemented in 2019 and currently is only used when the Order does not apply. This article explores: the development of this new legal framework; the implementation of the Act; and some of the ongoing debates, and practice complexities, related to services for people with a diagnosis of personality disorder.

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The CRPD and mental health law reform in Scotland

This paper examines key contemporary policy and legal agendas regarding mental health, with a view to highlighting contributions that may be brought from new and emerging discourses in academic health law. In particular, it does so from the perspective of the related fields of public health law and human rights law. Whilst core definitions of public health speak to questions regarding mental health and well-being, recent reports from a range of professional and advocacy organisations urge the message that mental health remains a neglected area of concern. This has led to an emphasis on the field of public mental health as a discrete area of study, policy and practice. We argue and explain how the related field of public mental health law should be conceptualised and operationalised. This entails an examination of the fundamental requirement of law to support and promote good mental health, with a renewed focus on prevention and proactive intervention rather than reactive measures. We suggest that a framing made by reference to human rights models will support the combined ethical and practical commitments that must be met by public mental health law.

The island of Ireland is partitioned into Northern Ireland and the Republic of Ireland. In both jurisdictions, there have been important developments in mental health and mental capacity law, and associated policies and services. This includes an emphasis on developing more comprehensive approaches to collecting data on outcomes and so there is an opportunity to align these processes to enable comparison and shared learning across the border. This article explores: legal and policy developments; international approaches to mental health outcomes; and the type of data that would be helpful to collect to better understand the use of mental health and mental capacity laws. It is argued that an inclusive strategy to developing a comprehensive, integrated and aligned approach to collecting and analysing data would benefit citizens, policy makers and professionals.

A state's real commitment to its international human rights obligations is never more challenged than when it faces emergency situations. Addressing actual and potential resourcing pressures arising from the COVID-19 pandemic has resulted in, amongst other things, modifications to Scottish mental health and capacity law and the issuing of new guidance relating to associated practice. Whether these emergency or ordinary measures are invoked during the crisis there are potential implications for the rights of persons with mental illness, learning disability and dementia notably those relating to individual autonomy and dignity. This article will consider areas of particular concern but how strict adherence to the legal, ethical and human rights framework in Scotland will help to reduce the risk of adverse consequences.