All patients 'to get refusal right'
Northern Ireland is expected to become the first place in the world to give everybody with or without mental health problems equal rights to refuse treatment, an expert said.
The draft Mental Capacity Bill will be the first piece of legislation to give everyone equal decision making powers over their care, according to Professor Roy McClelland, and will revoke separate mental health laws dating back decades.
Around 1,000 admissions are made to psychiatric or disability hospitals in Northern Ireland every year.
Professor McClelland said: "Currently, people with mental health problems may be detained and forced to have treatments against their will. Their capacity to consent or refuse to consent is not, under current legislation, a necessary criterion.
"When this new act is passed it will mean that everyone, including potentially vulnerable groups like deaf people and the elderly, will have the right to accept or refuse treatment, unless it is established they do not have the capacity to make the relevant decision."
A decade ago Professor McClelland took part in a major review of the law affecting people with mental health needs in Northern Ireland known as the Bamford Review which has led to far-reaching change.
Professor Emeritus of Mental Health at Queen's University Belfast, he has been helping draw up Stormont legislation which should start its passage through the Assembly early next year.
For the first time anywhere there will be a single framework governing all decision-making in relation to the care, treatment (for a physical or mental illness) or personal welfare of a person aged 16 or over, who lacks capacity to make a specific decision for him or herself, a government consultation document said.
It said: "This is not only a once in a generation opportunity to reform this important area of law but also an opportunity to be world leaders in doing so."
People may lack capacity to make a decision because of, for example, a stroke, an acquired brain injury, a learning disability or a mental illness.
The consultation added: "In fact, the reality is that the Bill has the potential to affect everyone in society, as most people will at some point in their lives be directly involved with, or will know of, someone who lacks capacity."
The proposals provide persons who lack decision making capacity with new safeguards that increase with the seriousness of the intervention being proposed.
A court may make one-off decisions or appoint court deputies to make ongoing decisions. A person would be assumed to have capacity unless it is established otherwise.
It cannot be concluded that a person is unable to make a decision unless all practicable help and support have been given without success, the proposals said.
It cannot be found that a person is unable to make a particular decision because he/she makes an unwise decision; and i t cannot be concluded that a person lacks capacity merely on the basis of age, appearance, condition or behaviour.
The Bill requires the person to be unable to make the particular decision because of an impairment of, or a disturbance in the functioning of, the mind or brain. Impairment or disturbance may or may not be caused by a disability and can be temporary (caused by alcohol or drugs for example) or permanent.
Legislation goes further than in England and Wales because it includes a test of whether the patient can appreciate the relevance of information.
For example, if somebody has abnormal or morbid fears, Professor McClelland said, it can cloud their decision making just as much as if they cannot understand the issue at hand.
According to the consultation, a person whose insight is distorted by their illness or a person suffering from delusional thinking as a result of their illness, may not meet this element of the test.
The legislation said: "Unlike the equivalent legislation elsewhere, there is no exclusion in relation to matters covered by mental health legislation given that the Bill will revoke the Mental Health Order as it applies to persons aged 16 and over.
"This is the key difference between the Bill and, for example, the Mental Capacity Act 2005 in England and Wales and is why it is such a groundbreaking piece of legislation."