Response to Draft Mental Capacity Bill (Northern Ireland)
Consultation Document 2014
Adult Mental Health & Learning Disability Services
Following a number of workshops and discussions these are the issues highlighted by the Adult
Mental Health & Disability (AMHD) Service in regards to the Draft Bill.
The Draft Bill has been broadly welcomed by all professional staff. It is perceived to be close to the
Bamford Vision and it is anticipated that it will deliver a consistent single legislative framework within
which all health and welfare issues will be considered equally, which is ultimately less stigmatizing or
discriminatory.
Staff are content with the principle of, presumption of decision making capacity; supporting the
enabling of participation in decision making in line with the Recovery and personalisation agenda, and
the principle of best interests; promoting the protection of an individual when capacity is impaired.
There was however a number of issues highlighted necessitating further consideration and a number
of enabling factors which will be key to successful implementation.
Code of Practice: The Code of Practice is essential to the context of the application of the Bill,
however, this has not been developed to date and is not therefore available for contextual
consideration.
Risk to Others (1.3) & (2.9) & (2.38): “The potential for an individual with capacity to harm others”
this is perceived as very weak. The idea that harming others automatically causes harm to self is
unworkable, and in practice, is not true.
People with mental health issues are less likely to be
prosecuted for violent incidents, particularly when it happens in hospital. In a recent study, in 245
such incidents, 10 resulted in police contact, 1 resulted in prosecution. (Reference: Prosecution of
physical assaults by psychiatric inpatients in N.I. Young Brady 1gbal & Browne Psychiatric Bulletin
(2009) 33:416-419).
We would also suggest noting the judgement of the Warwick Case 2010.
Risk of Harm (2.35) & (2.38): Risk of harm requires further clarification. How will this relate to
current risk assessment processes such as PQC and specialised R.A. i.e. RSVP. HCR20. Issues
such as how imminent the risk is and the values and principles of those
providing care. If an
individual wants to live in circumstances that fall well short of societal norms e.g. rough sleeping,
squalor, persistent risk behaviour or alcohol and drug misuse and they have capacity, this will be a
significant challenge of services and society as a whole.
Harmonisation of Mental Capacity Legislation: The suggestion that this law will harmonise our
mental capacity laws with the rest of the UK is a falsehood. We have the potential for a vastly
different framework for detentions and compulsory treatment. We have the potential for an improved
legal framework based on the experiences in the UK.
(4.7) Dangerousness: Staff were also very keen that the definition of serious harm (2.59) should be
explicit. It may not be the role of mental health services to address same, however, it is our role to
treat those whose mental illness makes them risky. The challenge may be that they do not want to be
treated which will raise more issues for mental health services. Risk assessment is a complex series
of judgements and decisions. We would suggest instead of ‘required treatment until dangerousness
is reduced’, it would be better to state ‘until a multi-disciplinary decision is made that any risk they do
present can be appropriately managed’.
Resource Implications (2.6) & (2.7): The reading of the Draft Bill identifies a number of key
individuals ‘to provide all practicable help’. This is likely to be resource intensive i.e. the use of legal
advocate, nominated persons, lasting power of attorney, ASWs, tribunals and panels. We would raise
the concern as to how these individuals can operate outside of normal working hours. It is also
unclear what powers an independent advocate will have. Will they have power of veto? Or do they
have any recourse if their opinion is completely disregarded.
Trust Panels: It must also be acknowledged that the panels will provide an extra layer of decision
making processes. This extra layer of decision making will need to be endorsed by Trusts, HSCB &
DHSSPS. Will it ultimately become an aspect of the Trust’s Delegated Statutory Function. How the
panel is constituted is very unclear. What is the role of the R.M.O. within this panel? Does the panel
include the R.M.O or does the R.M.O make representation to it? Timescales and availability for
panels will also be an additional burden for staff and resources.
Advanced Statements (2.17):
Not being allowed to override an advanced statement protects
autonomy but how can it be determined that the individual had capacity at the time of writing the
advanced statement. This will not always be in their best interest. If all service users despite being
unwell but with capacity or not – refuse treatment, how can we help these individuals? Individuals for
a variety of reasons including lack of insight would opt out of treatment. However, this would not be in
their best interest. There seems to be little provision to over-ride an advance decision to refuse
treatment when unexpected circumstances arise. These will not always be emergency situations.
Formal Assessment of Capacity:
There is no clear direction with regards to who will formally
establish capacity. There is concern that professional staff such as psychiatrists and psychologists
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will be inundated with demands to establish capacity in situations beyond their current work
boundaries. Many procedures appear very time consuming and unwieldy. For instance will nurses
have to formally assess capacity each time they administer medication? What provisions have been
made regarding informal assessments of capacity (2.24 Civil Wrongs).
Nominated Person:
Professional staff highlighted concerns regarding the designation of the
nominated person. If the nominated person was perceived to lack capacity to make a decision on
behalf of the individual, how would Trust personnel progress this issue?
Individuals’ Severe Enduring Mental Illness: There is a presumption (2.22) that an individual with
delusions has no capacity. Professional staff disagree with this assumption. This is not an overriding
position. Individuals with severe enduring mental illness may have fluctuating capacity, however,
remain a risk to themselves or others or not as the case may be.
Policy & Procedures: There will need to be a comprehensive review of all policy and procedure as a
lead into the new Capacity Bill. Regular activities carried out within the terms of custom and practice
or service user expectation may need revised, e.g. Adult Safeguarding, Restrictive Practice and
Deprivation of Liberty Guidance. This will also have implications for statutory, voluntary and private
organisations.
There is a need to establish adequate monitoring and review which may require
electronic/IT solution to reduce resource impact.
Availability of Treatment (2.56): Availability of care and treatment has been interpreted very broadly
by the courts in the past, however treatment does not have to be accepted, it may not even be
offered, it certainly does not have to be effective for the individual, however, we may find that based
on all of the above it may be impossible to discharge someone as an unintended consequence.
Training: Significant investment in providing comprehensive training programmes will be required
within and outwith Adult Mental Health & Disability Services.
Jurisdiction: There is provision for transfer of patients within the U.K. however no mention of the
jurisdiction of the Republic of Ireland. There should be a cross border clause/process as this is a
regular occurrence in some Trusts.
Documentation:
There is a need for clearly agreed documentation which will support decision
making and challenge. Careful attention to the protection of staff.

Algorithims will be helpful for all staff.

A glossary of terms with old legislation mapped to new would be beneficial.
Other issues needing further consideration
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Concern regarding the inclusion of those subject to the criminal justice system within the
scope of the new framework.
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Suicide of an individual with capacity.
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The need for the term Mental, Capacity Bill would be less stigmatising.

Societal awareness of the implications of this new Bill, as responsibility is passed back to
individuals and communities.

Change in culture for the delivery of Health & Social Care.

Implications for general medicine, G.Ps and Acute Hospitals require broader consultation.

Age implication, 16 years and service models, how would they support this reduction in age?

Role of RQIA.
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