The College welcomes the Mental Capacity Act (Northern Ireland) 2016 and is in strong agreement with a principles based approach that emphasises respect for autonomy and non-discrimination. The current Mental Health (Northern Ireland) Order 1986 (MHO) is outdated, and while it has some strengths, there is a need for new legislation. It is also necessary to pass capacity legislation in order to protect those in Northern Ireland who lack capacity and fall into the ‘Bournewood Gap’, thus complying with the European Convention on Human Rights, and bringing Northern Ireland into line with other UK jurisdictions.
Currently there are two strands of law dealing with treatment without consent – common law (or capacity legislation elsewhere in the UK), which largely relates to physical treatment, and mental health law relating to psychiatric treatment. Anyone with a physical disorder has the absolute right to refuse treatment unless they lack decision making capacity, in which case a best interests principle applies. But those with a mental disorder can be treated against their wishes, and without reference to their capacity or best interests. This is a profound difference in the principles governing treatment of physical and mental disorders.
The MCA (NI) 2016 moves away from what has happened elsewhere in the UK, with a fusion of mental health and capacity legislation which is largely in line with the changes suggested in the Bamford Review’s Comprehensive Legislative Framework, 2007. We are strongly supportive of the principle behind the legislation. However, we recognise that it is a novel approach and inevitably will encounter some challenges. Indeed we regard it as wise to anticipate and identify difficulties at this stage, hence the establishment of our Mental Capacity Act Working Group to help influence the development of the Code of Practice.
Influencing the drafting of the Code of Practice
Under the auspices of Dr Gerry Lynch, the College in NI has convened a Working Group which, by using a scenario based approach, will consider the Draft Code, discuss with Department officials and drill down into how the legislation will play out in terms of our clinical practice. This will maximise the level of detail in our responses to the Department. It will help us to secure any essential changes to the proposed Code by providing an evidence base for our comments and it will also serve to familiarise ourselves with the coming changes.
We would very much welcome your input and thoughts.
We now have a dedicated webpage for the MCA which will serve as a local resource. Please send us your contributions.
Have you a clinical scenario you would like considered? Responses will feature on the Members' Section of the webpage in a private area where you will also have access to the Draft Code as it progresses.
Would you like to join a group discussion forum - we want to assess interest as a first step - email firstname.lastname@example.org
Other useful links
- Mental Capacity Act (NI) 2016
- Research papers published by the Ad Hoc Joint Committee to Consider the Mental Capacity Bill.
- Dr Liz Dawson's CPD Blog on Law Society's Inaugural Elder Law Conference - Nov 2017
- Dec 2017 Psychiatric Bulletin Article on MCA (NI) 2016 by Drs G Lynch, C Taggart & P Campbell
- Dec 2017 Psychiatric Bulletin Article on Mental Health Law across the UK by Dr T Zigmond