I spent a fascinating half day on 3 July attending (and speaking at) a conference organised in Belfast to discuss the civil provisions of the draft Mental Capacity Bill that has been published jointly by the Department of Health, Social Services and Public Safety (‘DHSSPS’) and the Department of Justice, and which is out for consultation until 2 September 2014, along with the proposals for those subject to the criminal justice system. In this post, wanted to flag up a few of its most radical features, a few of the features from which we can learn in England and Wales, and a few points which I might modestly suggest those charged with taking the draft forward in Belfast might want to consider further.
The Bill has been long in gestation, and should be seen against a backdrop of a (current) landscape framework where questions relating to decision-making on behalf of those without capacity are predominantly determined under the common law, and questions relating to the treatment of mental disorder are determined by reference to the now distinctly venerable Mental Health Order 1986 (NI). A review commissioned by the DHSSPS into the delivery of mental health and learning disability services – known as the Bamford Review after its original chair, David Bamford (who tragically died before it was completed) – recommended in a report published in 2007 that there should be a single comprehensive legislative framework for the reform of mental health legislation and for the introduction of capacity legislation in Northern Ireland. This was seen as vital to reduce the stigma associated with having separate mental health legislation and provide an opportunity to enhance protections for persons who lack capacity and are unable to make a specific decision in relation to their health (mental or physical), welfare or finances for themselves, including those subject to the criminal justice system.
The Bill and its key features
After a very long gestation period, that central recommendation is now one step closer to being implemented in the form of Mental Capacity Bill, the civil provisions of which have now been published in draft. The civil provisions in the draft Bill – which applies those over 16 – and which will be accompanied in due course by further measures relating to the criminal justice system – appears at first blush superficially similar to the MCA 2005. Terms such as capacity and best interests appear, and the tests for the assessment of both mirror (with variations to which I will return) the tests set down in the Mental Capacity Act. But this superficial similarity hides its truly radical nature:
- There will – if the Bill is passed during the current Assembly’s mandate – be no replacement for the Mental Health Order 1986 (NI) in respect of those aged 16 and over (it will survive in respect of those aged 15 and below pending further consideration of how their position is best to be approached).
- There will therefore be no provision for the compulsory detention and treatment of those with mental disorder who have capacity to take the material decisions but refuse;
- The admission and treatment of those with mental disorder will, if they lack capacity to take the relevant decisions, be on precisely the same best interests basis as all other forms of decision-making for those without capacity.
If the civil provisions are enacted in substantially the same form as those issued for consultation – and if they are accompanied by a proper implementation programme – they will represent a truly ground-breaking shift in the approach to the care and treatment of those with mental disorder in Northern Ireland who will – in essence – disappear as a separate class of individual. I suggest that we will need to watch very carefully from this side of the Irish Sea to see how the consultation and legislative process unfolds – and in particular to see how the flesh begins to be put upon the bones of the draft primary legislation.
Like but not alike – some key comparisons between the civil provisions of the Bill and the MCA 2005
The civil provisions of the Bill also make particularly interesting reading for those steeped in the MCA 2005, because they appear both familiar and unfamiliar. In particular:
- There is far greater emphasis placed upon the provision of supporting individuals to make decisions, with an entire clause (4) devoted to fleshing out the principle in clause 1(3) that a person is not to be regarded as lacking capacity unless all practicable steps to enable them to make a decision without success. Those steps include such ones as ensuring that persons “whose involvement is likely to help the person to make a decision are involved in helping and supporting the person” (clause 4(2)(c)). Importantly, where a formal assessment of capacity is required (for ‘serious interventions’ – to which I return) – the statement of incapacity completed by the assessor must specifying what help and support has been given without success to enable P to make a decision in relation to the matter (clause 12(4)(d)). In these regards, the Bill is far more obviously CRPD-compliant than the MCA 2005, which (as many have noted) falls entirely silent as regards support after the reference in s.1(3); nonetheless, as with the MCA, there remains a question mark as to whether the very presence of a capacity test is itself discriminatory (note, in this regard, that the Assisted Decision-Making (Capacity) Bill in the Republic of Ireland – that has bent over backwards to comply with the CRPD – does not contain such a test);
- Whilst the ‘functional’ test in clause 3 appears similar to the functional test in s.3 MCA 2005, it includes in relation to the ‘use and weigh’ limb an additional element of not being able to appreciate the relevance of the information and to use and weigh it as part of making the decision in question. The inclusion of ‘appreciation’ would on its face go some way to assist with situations where the question is less one of cognition and more one of impairments in executive functions – a particular problem in relation to those with Acquired Brain Injuries;
- The ‘best interests’ test in clause 6 is – deliberately – framed using the same term as in the English legislation so that benefit can be drawn from the body of case-law building up in England and Wales under the MCA 2005. In light of the current debate as to whether best interests decision-making is forbidden by virtue of Article 12 of the CRPD, those taking the Bill forward might consider that it would be prudent to think of a less loaded term. However, whatever the language used, the reality is that this Bill is, ultimately founded upon a model of substituted decision-making where the wishes and feelings (or – in CRPD terms – the will and preferences) of the individual will not in all circumstances be determinative; as such, it seems prudent to proceed on the basis that it will not find favour with the Committee on the Rights of Persons with Disabilities. Whether that necessarily means that it can be implemented without infringing the terms of the CPRD itself is a topic for another day, and no doubt something that those charged with taking the Bill forward will be considering very carefully;
- The familiar protection against liability that finds its place in ss.5-6 MCA 2005 is, in the draft Bill, developed substantially into an entire Part. In particular, the draft Bill contains a fundamental distinction between general acts done in connection with the care, treatment or personal welfare of P, to which a mirror of s.5 MCA 2005 applies, and those acts to which additional safeguards apply before reliance can be placed upon the protection. Such acts include:
o Acts of restraint;
o The formal assessment of capacity and the consultation of a nominated person (who, if not nominated by P, is chosen by reference to a statutorily defined list) in the case of serious interventions (which has a statutory definition including but going beyond major medical interventions);
o Certain treatments for which a second opinion is required;
o Where authorisation is required for serious treatment where there is objection from P’s nominated person or compulsion);
o Where authorisation is required for an attendance or community residence requirement, both new concepts within the Bill;
o Where authorisation is required for deprivation of liberty;
o Certain serious interventions requiring the involvement of an independent advocate;
- Unlike under the MCA, the procedure for authorising deprivations of liberty is not to be found in a Schedule, but rather in the main body of the Act. In very broad terms, the following deprivations of liberty can be authorised (initially for up to 6 months) by a panel convened by the relevant Health and Social Care Trust:
o The detention of a person in circumstances amounting to a deprivation of liberty in a hospital or care home in which care or treatment is available for that person;
o The detention of a person in circumstances amounting to a deprivation of liberty while being taken, transferred or returned to a hospital or care home for the purposes of the provision to that person of care or treatment; or
o The detention of a person in circumstances amounting to a deprivation of liberty in pursuance of a condition imposed during a permitted period of absence from a hospital or care home.
(different provisions apply in relation to short-term detentions in hospital for examinations, which can be authorised on the basis of a medical report stating that the criteria for authorisation are met)
- It is of note that the deprivation of liberty provisions in the Bill have teeth – clause 135 proposes the creation of a criminal offence of the unlawful detention of a person without capacity;
- As with the MCA, deprivations of liberty arising in other settings will have to be authorised by a court (in the case of Northern Ireland, the High Court, as the decision has been taken that the size of the jurisdiction does not warrant the establishment of a dedicated Court of Protection). One suspects that this aspect of the Bill will be likely to be revisited during the passage of the Bill through the Assembly in light of the decision in Cheshire West and the implications (which I would say are not-jurisdiction specific) of the clarification of the ‘acid test’;
- Appeals against authorisations will be heard by a Review Tribunal – which is a renamed and reconstituted version of the Mental Health Review Tribunal. This is particularly interesting reading for all those who advocated that the DOLS regime should be brought within the ambit of the MHA 1983 in England, and it will be particularly interesting to see (assuming that this is what is brought into force) how this fares as a mechanism, especially if the numbers of individuals requiring authorisations for deprivations of liberty approaches the same proportions as in England. It is perhaps worth noting also in this regard that an individual deprived of their liberty in a care home who does not seek to exercise a right of review before the Tribunal will automatically have their case referred to the Trust after sufficient passage of time – the equivalence in the Bill between the position of those detained in hospitals and in care homes is in refreshingly stark contrast to the current major disparity between those subject to the compulsory provisions of the MHA 1983 and those deprived of their liberty pursuant to Schedule A1 to the MCA 2005;
- Other provisions adopted in England and Wales that are mirrored in the NI Bill include
o the replacement of EPAs by LPAs (and the creation of LPAs in relation to health and welfare matters). In respect of the replacement of EPAs, interestingly, one delegate expressed significant concerns to me about this, because of the greater expense that will be required in terms of their preparation and registration, which she considered in the particular circumstances of Northern Ireland may well lead to the unintended consequence that fewer powers will be drafted;
o the creation of Court-appointed deputies for health and welfare and property and affairs (replacing in the latter regard controllers; the former being an innovation);
o the creation of an Office of the Public Guardian;
o the codification of the concept of payment for necessities;
o provisions in relation to research upon those unable to give consent;
o the creation of an offence of will-treatment or wilful neglect (which – no doubt reflecting the heavy judicial criticism of s.44 MCA 2005 – sets out precisely the victim of the offence should lack capacity “in relation to all or any matters concerning his/her care;”
o Exclusions in relation to best interests decision-making in relation to highly personal decisions such as sexual relations or consenting to marriage;
- As noted above, no equivalent to the Court of Protection will be created, although Part 6 of the Bill sets out the declaratory and decision-making powers of the High Court in terms broadly similar to those contained in ss.15-16 MCA 2005. It will be interesting to see in due course the extent to which the inherent jurisdiction in Northern Ireland develops along similar lines to the way it has in England and Wales to cater for the circumstances of vulnerable but capacitous adults;
- As with the position in England, those aged 16-17 will potentially continue to be considered by reference to legislation specifically referable to children and by this legislation, and similar considerations will operate to determine under which regime they will fall. Those under 16 will be excluded, and it is clear that precisely how their circumstances are to be considered is a distinctly hot topic – but a debate from which we are likely to learn a great deal in England in due course;
- Finally, it should perhaps be noted that the Bill rather delicately side-steps the issue of advance decisions to refuse treatment by giving them statutory force as but not defining them save by the reference to the common law relating to such decisions;
The criminal justice system
The provisions of the Bill relating to the criminal law have not yet advanced to a position where they can be put out for consultation, but the consultation document provides an indication of the direction of travel. It is clear from that the Department of Justice is making a sustained attempt to introduce a fully capacity-based approach to care, treatment and person welfare in respect of persons subject to the criminal justice system. This will have effect at a number of stages:
- Removing the equivalent to s.135 MHA 1983 allowing police to remove individuals to a place of safety upon the basis of mental disorder, instead making the operation of this power contingent upon the individual lacking the material capacity and that removal being necessary to prevent serious harm to themselves or another and it being in their best interests;
- Making court powers to impose particular healthcare disposals on offenders at remand, sentencing or following a finding of unfitness to plead (a test which will, itself, be revised to be based upon capacity) contingent on that individual’s capacity (and – where they lack capacity – upon their best interests);
- The operation of prison powers by which the Department of Justice can transfer prisoners for in-patient treatment in a hospital.
It is very clear from the consultation document that these proposals are predicated on a radically different model of the treatment of those with mental disorder at al stage of their involvement with the criminal justice system. It is also clear that the formulation of the precise wording of the draft legislation to carry these principles into effect will be – to put it mildly – sensitive.
Points for consideration
From my reading of the Bill and the consultation document, my discussions with those present at the conference, and from my reflections on what we have done (and not done) in England, I might venture to make the following modest suggestions as to points that could merit further consideration:
- Revisiting whether the diagnostic limb of the capacity test is, in fact, necessary;
- If it is considered to be necessary (for instance as a safeguard to ensure that the merely eccentric or terminally indecisive are not caught up in the net), then ensuring that the ‘causative nexus’ emphasised by the Court of Appeal in PC and NC is enshrined so that it is only where an individual is unable to make a decision because of the material impairment or disturbance of the mind or brain is considered to lack capacity;
- Consideration of whether assisted- and/or co-decision-making measures should be implemented in the Bill;
- Consideration of what – if any – steps should be taken (either in the legislation or the accompanying Code of Practice) to ensure that those involved in supporting P are not, in fact, imposing their own agenda;
- Allied in some ways to this, consideration of what, if any, steps are required – either in this Bill or in other legislation – to protect those who have capacity but whose will is overborne by others. Quite how one addresses what can properly be called social incapacity is a problem that we are grappling with – not entirely satisfactorily – here under the inherent jurisdiction (and one might think that one advantage of dispensing with the diagnostic test is that it might potentially allow for ‘social’ factors to be considered…);
- If the decision – which is, in my view, ultimately a political decision – is taken that compliance with the CRPD allows for substitute decision-making, then ensuring that P’s wishes and feelings are given considerably greater weight in the determination of how that decision is made. This could be done in a range of different ways, ranging from providing that P’s wishes and feelings are to be determinative if they can reliably be identified (which would be a very strong approach), to requiring that any deviation from P’s wishes and feelings (especially if they reflect those expressed prior to a loss of capacity) must be justified on the basis of a compelling need (or some other such statutory test);
- Amending the deprivation of liberty provisions to include supported living/shared lives placements;
- Cross-checking the criteria for authorisations of deprivations of liberty in Schedule 1 paragraph 9 and Schedule paragraph 2(4) against Article 5(1)(e) ECHR. In other words, are the Departments satisfied that all those who lack capacity for purposes of the Bill would be considered by Strasbourg to be ‘unsound of mind’? The answer to this may very well be yes, but it may be that this is something that needs to be looked at carefully given the definition of ‘unsoundness of mind’ in Winterwerp as a ‘true mental disorder.’ (We have the self-imposed wrinkle in England that deprivations of liberty under Schedule A1 can only be authorised if the person has a mental disorder within the meaning of the MHA 1983, but it would appear that the Court of Protection can make an order which has the effect of authorising the deprivation of their liberty if the person lacks capacity for purposes of s.2(1) MCA 2005…);
- Creating a body that will ‘own’ the Act upon its passage – potentially along the lines of the Mental Welfare Commission, one key lesson from the English experience reflected in the House of Lords post-legislative scrutiny report on the MCA 2005 being that its implementation was very significantly hampered by the lack of a body to champion legislation that straddles so many departments. The passage of legislation in Northern Ireland will, in many ways, only be the start.
All those matters set out immediately above are very much initial suggestions and I reserve the right entirely to change my mind upon further reflection!
As so often, we have a great deal to learn in England by looking over the borders to see how other the jurisdictions in the United Kingdom (and, indeed in close proximity – in the shape of the Republic of Ireland) approach the question of how to balance autonomy and protection. The model set down in the draft Northern Irish Bill is one that we should be paying particular attention to, not least as the United Kingdom begins the process of engagement with the Committee on the Rights of Persons with Disabilities in the run up to the consideration of the United Kingdom by that Committee in the course of 2015, as part of which the Bill will no doubt feature heavily.