Understanding mental capacity
Understanding mental capacity

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Understanding mental capacity

1 How the law is changing

Mental capacity as it is understood and managed through the law may change in the next 10 years. This is affecting legislation in England, Wales, Northern Ireland and Scotland. You now hear from some of the people who are closely involved with changes to mental capacity law in the UK and consider the possible future of mental capacity law in the UK.

Brendan Kelly has an in-depth understanding of matters as they are currently affecting the Republic of Ireland. In theaudio below he talks about revisions to mental capacity law in the Republic of Ireland which were incorporated in the Mental Capacity Bill of 2015. (A bill is a proposal for a new law, or a proposal for a change to existing law, that is presented for debate in Parliament.) Brendan discusses whether the different models of decision making defined in the law can help those who may lack metal capacity. He also suggests how legislative advances can be made in this area in the future.

Looking at countries other than your own in this way can bring different perspectives. As you listen consider what changes might happen and why they are occurring.

Download this audio clip.Audio player: Audio of Brendan Kelly: Revising, reforming and reframing
Skip transcript: Audio of Brendan Kelly: Revising, reforming and reframing

Transcript: Audio of Brendan Kelly: Revising, reforming and reframing

BRENDAN KELLY
In the Republic of Ireland, the mental capacity law that's presently in force dates from 1871. And in 2015, we passed a new piece of legislation, but it has not yet been commenced. The proprietary work is underway.
So maybe the most important feature of Irish capacity legislation in the Republic of Ireland is how old it is, and how unfit for purpose it is and has been. For nearly a century, it's been outdated.
But progress is being made. We're at a point of very great transition, when a new piece of legislation, the Assisted Decision-Making (Capacity) Act has been passed by Parliament, signed by the president. But it's not been activated, because proprietary work is underway. So there is great change in the air. But the challenges with the new legislation will be very great.
The greatest challenge in mental capacity legislation in the Republic of Ireland is implementing the 2015 act, the new legislation. This introduces three levels of decision-making support.
So up to this point, somebody with impaired mental capacity, the only option really was that they were declared a ward of court. And the court, the high court, got responsibility for all decision-making in relation to the person, responsibility that it quickly delegated, usually to named persons. But it was an all-or-nothing approach, and it still is today.
The new legislation will abolish that all-or-nothing system and introduce three levels of decision-making support for each decision. So if, for example, someone cannot decide about health care, they could appoint the lowest of the three levels of support, called a decision-making assistant.
They could appoint a co-decision-maker that is a joint decision maker. That's the middle of the three levels of support. Or if their capacity is seriously impaired, they can go to court, or a court hearing can occur, and a court can appoint a co-decision-maker. That's the middle of the three levels.
Or the court can appoint a decision-making representative, someone to make decisions on behalf of a person. So the biggest challenge will be moving from the current all-or-nothing approach to this new, graded level of capacity structure, so that you have three new levels of support in making decisions.
The second biggest challenge will be the cultural shift from the old system, where the high court took over all powers of decision-making, to the new one, which is based on the person's will and preference. So the three levels of decision-making support, people acting in those roles, they can't do what they think is the right thing to do. They're under a legal obligation to assist the person doing what the person wants to do themselves. So the cultural shift is the second, and possibly the greater challenge.
The Assisted Decision-Making (Capacity) Act of 2015, which will be implemented in the coming years, is part of a process that will hopefully result in the Irish government ratifying the Convention on the Rights of Persons with Disabilities, the UN CRPD as it's called, which Ireland has signed, but it has not yet ratified. So it is hoped that this will allow that to happen.
And if the new legislation is activated in due course, in the coming couple of years, and the government goes ahead and signs the CRPD, that will produce much broader change in terms of respect for mental capacity. There will be knock-on effects to other areas of law. For example, in relation to criminal law, there might be consequences, and also law relating to property and other matters.
So I suppose that the biggest change we'll see will be a sort of a domino effect. If the progress on the 2015 act allows signing of the Convention of the Right to Persons with Disabilities, that would bring a host of new responsibilities to the government-- in summary, to make reasonable accommodation for persons with impaired capacity and persons with disabilities. Now, not everyone with disability has impaired capacity, but there is some overlap there. So the next 10 years will see a lot of change in that area, following on from the 2015 act.
End transcript: Audio of Brendan Kelly: Revising, reforming and reframing
Audio of Brendan Kelly: Revising, reforming and reframing
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Now listen to three short audios that talk about changes in legislation in England and Wales, Northern Ireland and Scotland. Tim Spencer-Lane talks about England and Wales, Gavin Davidson about Northern Ireland and Colin McKay about Scotland.

Download this audio clip.Audio player: Audio of Tim Spencer Lane
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Transcript: Audio of Tim Spencer Lane

TIM SPENCER-LANE
The Mental Capacity Act of 2005 is a crucial piece of legislation for people who lack decision making capacity. It covers people in England and Wales-- it covers the law of England and Wales, in fact-- and there are a number of important provisions within it. It's still seen as being a visionary piece of legislation, something that's very important in terms of trying to empower people who lack capacity, or who may lack capacity, to enable them to make decisions for themselves, or for best interested decisions to be made on their behalf.
In terms of the two things that are very important about the act, these are mainly kept in the principles. The act sets out a number of principles which may be applied to decisions under the act. There are two key principles in this regard.
The first one is the assumption of capacity. In other words, decision makers must start from a default position that the person is able to make the decision for themselves. It's only when they have reason to believe that the person may lack decision making capacity that a decision can be made on their behalf.
The second important provision is the so-called second principle of the act, the supported decision making principle. So this requires decision makers to provide services and to assist people to try to enable them to make a decision for themselves before deeming that person as lacking capacity to make the relevant decision.
There are a number of challenges to the mental capacity act. The big challenge is the poor lack of implementation of it. There seems to be a lack of knowledge in some sectors, and to be frank, it's not being implemented often in the way that it should be. This was highlighted by a House of Lords post-legislative scrutiny committee report, which came out a few years ago. It praised the mental capacity act, but felt it wasn't being implemented properly in practise, and therefore, recommended more education and more-- an information campaign about the pros of the capacity act and how to comply with it.
There's likely to be big changes in the next 10 years to mental health and mental capacity legislation. This is being driven by two main forces. The first is the United Nations Convention on the Rights of Persons with Disability. This requires law to pay far more attention to the person's wishes and feelings, when it comes to making decisions for a person lacking capacity. So there will be pressure on the mental capacity act to include much more provision for recognising the person's wishes and preferences.
The other challenge is likely to be around the issue of deprivation of liberty. The Law Commission, in 2017, produced a report which recommended that the deprivation of liberty safeguards, which are attached to the Mental Capacity Act, should be overhauled, as a matter of urgency, and replaced with a new scheme, which they call the liberty protection safeguards. The reason for this is that the deprivation of liberty safeguards aren't working properly. They're not providing safeguards in the vast majority of cases, where people lacking capacity are being deprived of their liberty.
It's likely that the government will be looking to introduce new legislation on this subject over the next two years. So there will be, I think, very big changes to the Mental Capacity Act in the coming years.
End transcript: Audio of Tim Spencer Lane
Audio of Tim Spencer Lane
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England and Wales:

Tim discusses the Mental Capacity 2005 which covers England and Wales and in particular two important principles: the assumption of capacity and supported decision making. He discusses the challenges the Act has faced especially around its poor implementation and suggests that there are likely to be big changes in next ten years to address the need to include much more provision for recognising people’s wishes and feelings as driven by United Nations Convention on Rights of People with Disability and also to address the Deprivation of Liberty Safeguards which are not working properly

Download this audio clip.Audio player: Audio of Gavin Davidson: Incapacity law in Northern Ireland – proposed frameworks
Skip transcript: Audio of Gavin Davidson: Incapacity law in Northern Ireland – proposed frameworks

Transcript: Audio of Gavin Davidson: Incapacity law in Northern Ireland – proposed frameworks

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.
End transcript: Audio of Gavin Davidson: Incapacity law in Northern Ireland – proposed frameworks
Audio of Gavin Davidson: Incapacity law in Northern Ireland – proposed frameworks
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Northern Ireland: The current law has both strengths and limitations. The proposed new framework was passed in May 2016 but may not be implemented for three to four years. Will replace the relevant common law and Mental health Order with a capacity based law. Will it introduce the use of more formal processes in decision-making?

Download this audio clip.Audio player: Audio of Colin McKay: Incapacity law reform in Scotland: a chance to lead again?
Audio of Colin McKay: Incapacity law reform in Scotland: a chance to lead again?
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Scotland: was progressive principle-based legislation but there are now significant concerns about its practical application in particular the interpretation of the Deprivation of Liberty safeguards. Following a consultation more reforms are being suggested including a new form of ‘graded guardianship’ and the possibility of a fused mental health and mental capacity law.

Activity 1 How the different nations are changing

Timing: Allow about 5 minutes

Think about the information and opinions you’ve just heard. Are there similarities between the different UK nations or is each country different?

The four interviewees summarise what practitioners think may happen in the next ten years. Are these developments the same in each country? Is there anything that surprises you when they were talking? Make a note of your thoughts in the box below which will help you in this week’s quiz.

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Comment

Similarities

Similarities between the different nations include the principles upon which the legislation and subsequent processes are based – these were outlined in Week 3.

For all nations, proposals to change legislation are affected by case law such as the Cheshire West case.

Differences

Differences included the fact that the mental capacity and mental health legislation in Northern Ireland has been fused. This may be something that Scotland will adopt.

Most of the differences between nations tend to be in the use of language. The dates of legislation are also different.

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