The publication of the draft Mental Capacity Bill by DHSSPS and DoJ for public consultation places Northern Ireland as a progressive world leader in this area of the law.
The Bill is world-leading in that it is the first time mental health and mental capacity law has been fused together. The Bill implements the recommendations of the Bamford Review of Mental Health and Learning Disability and addresses areas of our law which are not currently human rights compliant.
The Mental Capacity Bill is relevant to all. Everyone is presumed to have the ability to make a decision unless it can be proved otherwise. The stigmatising notion of mental disorder will be replaced by a law based on a person's capacity to make a decision. No one else can make a decision for individuals unless an impairment of or disturbance in the functioning of the mind or brain means they don't have the ability to make a particular decision. Only decisions relating to health, welfare or finance may be made for others.
A decision should only be made for another person as a last resort once all practicable help and support have been given to enable the person to do so for him or herself.
If a substitute decision has to be made then a best interests judgment is required which should be influenced by the wishes and feelings of the individual, what carers and family members believe is in the individual's best interests and should be the least restrictive option possible.
The Bill creates safeguards to protect the rights of individuals who are deemed to lack decision- making capacity. It will create a statutory right to independent advocacy, reform the system of powers of attorney, harmonise the capacity-based approach between both civil and criminal justice systems, and create new offences of neglect and ill-treatment of those who lack capacity.
Consultation on the Mental Capacity Bill runs until September 2. It is important that as many people as possible make their voices heard in order to influence what is likely to be the biggest piece of social legislation the NI Assembly has dealt with to date.
- Colin Harper is assistant director (mental health and community care policy), Law Centre (NI)