Law Centre (NI) Briefing
March 2007

1.   Introduction

1.1 Law Centre (NI) welcomes the reform of mental health law in Northern Ireland.  The Comprehensive Legislative Framework proposes significant change to mental health law, which is largely welcome.  This paper outlines some of those key changes and outlines our preliminary thoughts on some of the specific proposals, highlighting those areas that warrant particular attention.

2.   Summary of Some Key Aspects of the Framework

2.1  A ‘principles base’ for new legislative proposals

The Framework proposes that any new legislation 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.  We support this proposed move to autonomy-based legislation and the empowerment of service user to make decisions regarding their treatment and care.

2.2  Decision-making capacity to form the basis of legislative reform

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.  We 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.  We welcome proposals for a broader application of the Framework 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.

2.3  Introduction of a nominated person as a replacement for ‘nearest relative’ and the right to independent advocates

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 his/her nominated person and the right to an independent advocate ensures that his/her voice is heard.

2.4  Implementation of principle of equivalence for people subject to the Criminal Justice System and the development of an inter-agency risk assessment and management framework

There are considerable issues regarding the treatment and provision of services for people with mental health problems involved in the criminal justice system.{footnote}See The Bamford Review of Mental Health and Learning Disability, Forensic Services Report, October 2006{/footnote} Considerable work needs to be done to ensure that any new legislation integrates fully with the criminal justice system.  We agree that 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.

2.5  Addressing the ‘Bournewood’ issue

The Framework also takes account of proposals to address the ‘Bournewood’ issue.  We welcome the proposals to ensure legislation appropriately deals with cases where a non-objecting person with impaired decision making capacity is deprived of his or her liberty.  Urgent consideration, however, must be given to the formulation of interim protection to address this legislative gap while legislative reform occurs.

2.6  Statutory duty to provide adequate treatment and care

We welcome the proposals to ensure that the needs of those detained for treatment are met by recommending that an obligation will be placed upon service providers to deliver the essential elements of an intervention plan.  We would welcome a similar statutory duty to meet the needs of those who voluntarily seek to access services.

2.7  Adopting a ‘best interests’ test for decisions or actions

We note the proposal in the Framework to adopt a ‘best interests’ test for any decision or action on behalf of a person with impaired decision-making capacity.  We would propose the use of a ‘benefit’ test as this is more in keeping with the autonomy principle within the framework.  The ‘best interests’ test can be paternalistic in tone, which is at odds with the principles of the proposed reforms.

2.8  Altering the risk threshold and a two-tiered approach to risk assessment

The Review proposes 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.{footnote}ETS 164 C, 4IV, 1997{/footnote}  We would be concerned by any move away from international standards in relation to harm to self and would recommend that any legislative framework for Northern Ireland reflect international best practice.  We are also concerned by 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.  We would urge considerable caution regarding the introduction of differing tests in relation to compulsory assessment.

2.9  Second medical opinions

The Framework proposes that the RQIA may request an independent ‘second opinion specialist’ when reviewing Intervention Plans.  We would recommend that the individual being assessed or their nominated person should have the right to request and receive a second opinion when her or she is being assessed for impaired decision-making capacity and/or any interventions.

2.10  Access to justice for people with mental health problems detained for treatment

The legal cost of attending Mental Health Review Tribunals in Northern Ireland 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.

2.11  Timeframes for assessment and the review of detention and treatment of those with mental health problems

Any increase in the period of detention for compulsory assessment from 14 days, under the 1986 Order, to 28 days 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.

3.   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.