Capacity Bill - Law Centre response
The Law Centre welcomes the publication of the draft Mental Capacity Bill for Northern Ireland as a key milestone to achieving progressive and rights-based reform of mental health legislation.
Along with our partners in the Mental Health and Learning Disability Alliance, we were actively involved in shaping the Bill. We were happy to be able to engage in DHSSPS and DoJ consultation process which ran throughout the summer:
- drafting an explanatory briefing on the main clauses of the Bill for our members and interested stakeholders,
- convening a Chatham House rule consultation meeting in August to discuss aspects of the bill; and
This expertise has been built up over the years through the experience of our mental health legal advisers, our participation in the Bamford review and chairing of the Mental Health Alliance.
We have responded in-depth to the DHSSPS consultation and are continuing to engage in the Department of Justice engagement process on criminal justice aspects of the Bill.
We have provided a clause-by-clause response to the draft Bill and a response to both of the policy proposals for children and young people and for the criminal justice system.
You can download our full response here, or read the executive summary below.
1. The Law Centre believes that the Mental Capacity Bill is progressive in human-rights terms and is compliant with the European Convention of Human Rights and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). Appropriate safeguards are proposed to be put in place that extend the protection of the rights of those who do not have the capacity to consent to their deprivation of liberty which bring Northern Ireland in line with its obligations under Article 5(1) of the European Convention. The gateway to compulsory interventions is disability and illness neutral, with a statutory duty added to maximise an individual’s decision-making capacity.
Substitute decisions are made as a last resort, in line with the UNCRPD. The Bill removes the stigmatising concept of a need for a piece of legislation designed for treatment of the “mentally disordered”, replacing this with a focus on whether or not the individual has the capacity to make the relevant decision for him/herself.
2. The Law Centre believes the principles underpinning the legislation are vitally important and we particularly welcome the added emphasis on the need for support to be provided. We do however feel that the Bamford principle of “justice” could be better reflected by making it an offense to discriminate against someone who has been subject to interventions under the Bill. We also believe that the best interests step outlined in clause 6 would benefit from the addition of a reference to D taking into account “P’s current will and preferences” in order to reduce concern about the Bill’s compliance with the UNCRPD.
3. The Law Centre welcomes the statutory recognition given to advance decisions to remove treatment; however we believe that more detail should be given within the Bill over what constitutes a valid advance decisions, rather than leaving it to the common law to determine.
4. The Law Centre believes that the definition for treatment with serious consequences should be changed to any treatment that meets the criteria to be considered a serious intervention. Having two separate, but broadly identical definitions is confusing and unnecessary.
5. The Law Centre welcomes the proposals for deprivations of liberty as being more workable and in keeping with the ethos of the legalisation than those in England and Wales. We welcome that the provision of treatment with serious consequences for someone who is deprived of his/her liberty requires a separate authorisation process than the detention. We do, however, recommend that consideration be given to the inclusion of a definition of deprivation of liberty within the Bill that is in keeping with that expressed by Baroness Hale in the P v Cheshire West Supreme Court judgement, namely that a person is deprived of his/her liberty if they are “under continuous supervision and control and are not free to leave” and that this can occur in any location, not just a hospital or care home.
6. The Law Centre welcomes the abolition of guardianship. However we believe that the power to mandate someone to attend training, education or employment as part of the terms of a community residence requirement should be removed.
7. The Law Centre welcomes that individuals will have the right to a review of their detention under the short-term (schedule 2 authorised) period which will not impact on their ability to do the same if the detention is extended under schedule 1. The Law
Centre, however, believes that there should be an obligation on HSC trusts to refer any schedule 1 authorised measure to the Tribunal, if has not already been done so within one year as opposed to two within the Bill.
8. The Law Centre does not feel it can make substantive comment on the proposal for HSC trust panels as almost all of the detail around their membership and operation has been left to future subordinate legislation. If they are to remain within the final proposals, we believe that they must be multi-disciplinary, have relevant expertise and contain independent representation from people with service-user or carer experience. If not, then the HSC trust panels will be at best, a very limited safeguard.
9. The Law Centre welcomes the ability in certain circumstances of a person lacking capacity to appoint their nominated person and, in the event of none being appointed, that the default nominated person is the primary carer.
10. The Law Centre welcomes the inclusion of a statutory obligation to provide access to independent advocacy in certain situations as potentially a significant safeguard in the Bill. We believe, however, that they should be commissioned independently of the HSC trusts by the Health and Social Care Board; should be able to call for second medical opinions to be obtained regarding the provision of treatment to P; and should have a clear role which may include challenging a decision that P lacks capacity. We also caution against D being the gatekeeper for P’s access to an independent advocate.
11. The Law Centre supports the creation of the Public Guardian. We welcome that those with lasting powers of attorney and court-appointed deputies are bound by Part 1 of the Bill.
12. The Law Centre believes that the research provisions need rethought. We welcome that the principles of the Bill apply to interventions and decisions with regard to “intrusive research”, however we feel that a number of the provisions are not compatible with the principles themselves. We do not believe that research should be permitted which is not deemed to be in P’s best interests.
13. The Law Centre believes that a deprivation of liberty in hospital must always be authorised through schedule 2 before a schedule 1 authorisation is sought for each admission.
14. The Law Centre believes that every schedule 1, 2 and 3 authorisation should be made by an approved social worker, or at least an individual who is social work trained.
15. The Law Centre believes that meeting the prevention of serious harm conditions should be a precondition of every schedule 1 authorisation for provision to P of treatment with serious consequences (whether the nominated person object, P resists or P is already subject to another measure under the Bill).
16. The Law Centre expresses concern about the extension of risk criterion in the Bill to include risk of serious psychological harm to P. We believe that it could be argued that failure to provide psychotropic medication could almost always be argued to risk serious psychological harm to P and that this could potentially lead to a significant increase in compulsory medication given in treatment of mental health conditions against P’s wishes.
17. The Law Centre is disappointed that specific legislative proposals to reform the law relating to the emerging capacity of those under the age of 16 has not been achieved.
We believe that retention of the Mental Health (Northern Ireland) Order 1986 for under 16s is the retention of a discriminatory piece of legislation. Although we are not yet convinced that the needs of children under 16 would be best served by their inclusion in the Mental Capacity Bill on the same basis as adults, we believe that comprehensive and evidence based law reform is needed on the issue of emerging capacity. The Department must therefore progress this work as a matter of urgency.
Any transitional arrangements must provide, at the very least, the same level of safeguards for those under 16 and for those over 16 who are subject to the same intervention.
18. The Law Centre welcomes that the Department of Justice proposals intend to bring a capacity-based approach to any decision regarding compulsory treatment within the criminal justice system. We believe that anyone subject to compulsory treatment within this setting must also have access to the same safeguards as someone in a civil setting. It is regrettable that there will not be time to carry out a full public consultation on the draft legislative proposals in order for the Bill to complete its passage through this mandate of the NI Assembly. We therefore request that both the Health and Justice Mental Capacity Bill reference groups get a period of time on which to scrutinise and provide feedback on the draft proposals.