A comprehensive legislative framework

Laura Niwa, policy officer at Law Centre (NI), reviews the proposed changes to mental health legislation as recommended by The Bamford Review of Mental Health and Learning Disability in its final report ‘A Comprehensive Legislative Framework’.

The Comprehensive Legislative Framework (the Framework) proposes significant change to mental health law, which is largely welcome. This article reviews some of those key changes and outlines Law Centre (NI)’s preliminary thoughts on some of the specific proposals, highlighting those areas that warrant particular attention.

Key aspects of the Framework

The Framework proposes that any new mental health legislation in Northern Ireland should be based on four overarching principles of respect for autonomy, justice, benefit and least harm, which recognise and support the dignity of the person. The proposed move to autonomy-based legislation and the empowerment of service users to make decisions regarding their treatment and care is welcome.

No specific capacity legislation exists in Northern Ireland, although it has already been enacted in the rest of the United Kingdom, in the Adults with Incapacity (Scotland) Act 2000 and the Mental Capacity Act 2005. Law Centre (NI) support the proposals for capacity-based legislation and would welcome a single comprehensive legislative framework, which adopts a common approach to issues relating to the care, treatment and detention of people with a mental health problem, rather than two separate pieces of legislation as has been the case in Great Britain.

A broader application of the Framework is proposed, in recognition of the practical reality that many situations involve a combination of health and welfare elements and the legislation must apply to decisions in respect of all health and welfare needs. The Framework adopts a ‘best interests’ test for any decision or action on behalf of a person with impaired decision-making capacity. The ‘best interests’ test can be paternalistic in tone, which is at odds with the principles of the proposed reforms. Consideration, therefore, should be given to the use of a ‘benefit’ test as this is more in keeping with the autonomy principle within the framework.

The Review recommends that the current test for detention, ‘failure to so detain him would create a substantial risk of serious physical harm to himself or to other persons’, is replaced with a new test that ‘failure to assess would create a significant risk to the health, safety or welfare of the person or to the safety of others.’

The 1997 Convention on Human Rights and Biomedicine states that a person with a mental disorder may be compulsory treated only where a failure to treat would result in serious harm to the person’s health.1 A move away from international standards in relation to harm to self is concerning as any legislative framework for Northern Ireland should reflect international best practice. Also of concern are the proposals for a two-tiered approach to the assessment of risk and the application of a lower threshold test for people with mental health problems who are ‘known’ to have impaired decision-making capacity. Considerable caution must be taken regarding the introduction of differing tests in relation to compulsory assessment.

There are significant issues regarding the treatment and provision of services for people with mental health problems involved in the criminal justice system.2 Considerable work needs to be done to ensure that any new legislation integrates fully with the criminal justice system. Equal rights to treatment and services should be made available to people with mental health problems detained through the criminal justice system. The importance of public protection must be counterbalanced by measures to curtail the high levels of stigma and discrimination associated with mental health. Considerable care, therefore, needs to be taken when drafting provisions relating to public protection in balancing public protection and individual rights.

The proposals are put forward to ensure that the needs of those detained for treatment are met. This is done by recommending that an obligation will be placed upon service providers to deliver the essential elements of an intervention plan. A similar statutory duty to meet the needs of those who voluntarily seek to access services would also be valuable.

The Framework also takes account of proposals to address the ‘Bournewood’ issue. The Framework outlines proposals to ensure legislation appropriately deals with cases where a voluntarily detained person with impaired decision making capacity who wishes to leave detention is deprived of his or her liberty without a statutory right to object. Urgent consideration, however, must be given to the formulation of interim protection to address this legislative gap while legislative reform occurs.

The proposals to repeal the special status accorded to ‘the nearest relative’ and the inclusion of the right to an independent advocate are welcome. These reforms will give a person with mental health issues the freedom and control to choose her/his nominated person and the right to an independent advocate ensures that her/his voice is heard. The Framework proposes that the Regulation Quality Improvement Authority (RQIA) may request an independent ‘second opinion specialist’ when reviewing Intervention Plans. Law Centre (NI) recommends that the individual being assessed or her/his nominated person should have the right to request and receive a second opinion when he or she is being assessed for impaired decision-making capacity and/or any interventions.

Any increase in the period of detention for compulsory assessment from fourteen days, under the Mental Health Order 1986, to 28 days as proposed in the Framework, warrants particular attention. This is a significant increase, which is inappropriate given the vulnerability of people with mental health problems and the gravity of detention as a deprivation of liberty. Proposals for the RQIA to review Intervention Plans, for those detained, at six-monthly intervals rather than yearly are encouraging however, we still consider six months to be unduly long. Reviews that are more frequent will ensure that a patient’s response to any intervention is monitored closely and that any changes in their presentation and their capacity are identified as soon as possible.

Of particular concern for Law Centre (NI) is the legal cost of attending Mental Health Review Tribunals in Northern Ireland. The cost of attending may preclude some mental health patients from engaging specialist legal advisers or from taking cases before the courts, as applications for legal aid are currently means tested. There is the need for an automatic right to legal aid to ensure that people with mental health problems can challenge detention decisions. This would bring Northern Ireland in line with England and Wales where applications for legal aid for people with mental health problems who are detained for treatment are not means tested.

Where to next?

Law Centre (NI) will continue to work on the reform of mental health legislation in Northern Ireland. We aim to track and monitor the implementation of the recommendations made within the Bamford Review. Our work will be informed and shaped by cases brought to our mental health legal service. This provides a unique and exciting opportunity for campaigning and lobbying on policy issues to be directly informed by people with mental health issues, their carers or family members.

The Framework is available at www.rmhldni.gov.uk/index/report-consultations.htm. The public consultation ends on 27 April 2007.