Transcript

INSTRUCTOR

The current legal framework in Northern Ireland for making decisions for people who are unable to do so is provided through two main mechanisms. The first is a statute law. It's the Mental Health Northern Ireland Order in 1986. It's a traditional mental health law. So there are criteria for a compulsory intervention for mental disorder and risk.

The second main part of the current legal framework in Northern Ireland is the common law. So under the common law, if a person is proposing to make a decision for someone else, they're protected from liability for prosecution. They can demonstrate that they had or have a reasonable belief that the person they are proposing to make the decision for lacks the capacity to do so, and the intervention that they're proposing is in the person's best interests.

There are two things that are important about the current framework in Northern Ireland. The first is that there is no statute law to cover mental capacity or incapacity enforced in Northern Ireland. So there are no set processes to assess [? the ?] past [? date ?] intervene, and/or to provide safeguards to ensure people's rights are protected. It also means that if there are any [? difficults ?] and/or disputed decisions about treatment or welfare which aren't covered by the mental health order, then those have to go to the high court for a declaratory order.

Arguably in the current system, due to developments in human rights, especially the [INAUDIBLE] case, that all decisions, for example, regarding deprivation of liberty, should be being referred to the high court. And that raises one of the main challenges with the current legal framework in Northern Ireland. If that were to happen, I think it's reasonable to say that the high court would be overwhelmed.

Another central and important challenge for the current legal framework is that it's discriminatory. So under the Mental Health Order, a compulsory intervention is allowed based on mental disorder and risk. But that can be regardless of whether the person has the capacity to make the relevant treatment decision or not. So treatment can be forced even if a person has the capacity to refuse that treatment, as long as the mental disorder and risk criteria are met. That doesn't apply in any other aspect of health and welfare decision making. So it's essentially discriminatory.

In terms of what will or might change in the next 10 years, in May of 2016, the Northern Ireland Assembly passed the Mental Capacity in Northern Ireland Act, 2016. It's not yet enforced. But if it does come into force, it's an extremely progressive legal framework, because it will provide one framework for everyone in Northern Ireland who lacks the capacity to make decisions. So it will replace the Mental Health Order. So we won't have two laws running in parallel. We'll just have one legal framework for everyone.

It has the support principle within it, which will provide a statutory duty for people to provide support for people to make their own decisions. So it's potentially extremely positive. But there is some uncertainty about how and when it will be implemented. But hopefully soon, and effectively.