Northern Ireland set to transform the statutory approach to adults with mental disorders

In May 2014, the Department of Health, Social Services and Public Safety (Northern Ireland) (DHSSPS) issued a consultation on a proposed draft mental capacity bill for Northern Ireland.1 The intention is to introduce a single capacity-based statute that will contain provisions for the care and treatment of both the mentally disordered and those lacking the capacity to consent to specified decisions. The Northern Ireland government is considering a radical approach to a complex area of law and medical treatment.

Currently in Northern Ireland, questions in relation to decision-making on behalf of adults who lack the capacity to make the specified decision are regulated by common law, effectively the common law position that existed in England and Wales before the introduction of the Mental Capacity Act 2005 (MCA). Legal provisions for the care and treatment of mentally disordered individuals are provided by the Mental Health Order 1986 (NI). Although in the 2007 Bamford Review2 of the treatment of individuals with mental ill health and learning disability, aspects of these provisions were regarded as working well, a number of serious shortcomings were identified. These included concerns about whether the approach was compliant with relevant human rights jurisprudence in relation to the de facto detention of compliant incapacitated adults; that it was out of step with developments in good practice which emphasised partnership between patients and professionals; and that it was characterised by an excessive focus on risk management.