Northern Ireland Leading the Way on Mental Capacity Law

01 August 2014

Author: Laura Menary
Practice Area: Healthcare
Sector: Healthcare


It is 7 years since the Bamford Review of Mental Health and Learning Disability considered the law, policy and provisions affecting people with mental health needs and learning disabilities in Northern Ireland.

At present, there is no specific legislation governing mental capacity in Northern Ireland. Instead, separate legal authority is provided pursuant to the Mental Health (Northern Ireland) Order 1986 to detain persons for the assessment and/or treatment of a mental disorder provided a certain criteria is met, regardless of whether the person has the capacity to make the decision themselves.

Leading the way on a global basis, the Department of Health, Social Services and Public Safety, together with the Department of Justice, have drafted a Mental Capacity Bill for Northern Ireland, combining, for the first time, Mental Health and Mental Capacity Legislation and providing a single legislative framework governing the welfare of those aged 16 and above.

The four overarching principles suggested by the Review, namely, Autonomy, Justice, Benefit and Least Harm, are reflected in the draft Bill with the latter two being covered by the Best Interest principle.

The draft Bill protects a person’s right to autonomy, the starting point of which is to assume that all persons over the age of 16 have the capacity to make decisions for themselves. There is also a legal requirement to provide support to enable people to make such decisions.

With regard to those established as lacking capacity, new and improved safeguards have been introduced to ensure that any decision made on their behalf is done so in their best interest, with those safeguards being proportionate to the seriousness of the decision being made.

With regard to civil provisions, the key changes introduced by the draft Bill provide for:

  • An enlarged jurisdiction of the High Court relating to the care, treatment and personal welfare of persons with reduced mental capacity; and
  • A new officer (to be known as a Public Guardian), whose role it will be to establish and maintain a register of Lasting Power of Attorney’s (LPAs) and Court appointed deputies, supervise the work of the deputies and to investigate complaints relating to them/LPAs/EPAs.

The policy proposals relating to the criminal justice system suggest the introduction of a capacity based approach to the care, treatment and personal welfare of those subject to the criminal justice system. The three key stages addressed by the proposals are:

1.  The Police’s ability to remove a person who is in need of care/control from a public place to a place of safety;

2.  The Court’s ability to deal with those either unfit to plead or in need of particular healthcare based disposals; and

3.  The Prison Service’s ability to transfer prisoners in need of inpatient treatment to/from Hospital together with the responsibility for them whilst they are in Hospital.

For those under the age of 16, the 1986 Order will continue to apply, however, a separate project has been proposed to review the wider legislative framework relating to children.

The consultation process will close on 2nd September 2014 and it is anticipated that the draft Bill will be introduced into the Assembly in early 2015 with a view to enactment before the end of the current mandate. A full copy of the consultation paper can be reviewed at:

For more information, please contact Laura Menary or another member of the Healthcare Team.