Why our HRA Matters BIHR Explainer- Coronavirus Law & Policy: Changes to Mental Capacity Law (Northern Ireland) 4 January 2021 Download a PDF of the Explainer here The Coronavirus Act, which came into force on 25 March 2020, made many temporary changes to health and social care legislation across the UK. This explainer will look at the temporary changes which were made to mental capacity law in Northern Ireland by: the Coronavirus Act 2020; and the Mental Capacity (Deprivation of Liberty) (Amendment) Regulations (Northern Ireland) 2020 We will look at the temporary changes to: the Mental Capacity (Northern Ireland) Act 2016 to the Mental Capacity (Deprivation of Liberty) (No. 2) Regulations 2019 The Department of Health in Northern Ireland produced statutory guidance to accompany these changes during Covid-19: the Emergency Code of Practice. What is the Mental Capacity (Northern Ireland) Act? The Mental Capacity (NI) Act (“MC(NI)A”) provides a framework for people who lack capacity to make decisions for themselves and for those who have capacity to make preparations for a time when they lack capacity. It combines mental capacity and mental health law for people aged 16 years old and over in Northern Ireland. The MC(NI)A was passed in 2016. Rather than put all of the new legislation in place in one go, stages of the new Act are being implemented one by one. When all of the stages of the new Act are complete, the older the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”) will no longer be used for anyone over the age of 16. Basically, the MC(NI)A will replace the 1986 order. For the time being (until all the stages of the 2016 Act are in place), there is a dual system in place. So, both the MC(NI)A and the 1986 Order provide the legal frameworks for the deprivation of liberty The MC(NI)A provides safeguards around mental capacity and the deprivation of liberty. Deprivation of Liberty Safeguards ensure that people assessed as lacking capacity do not have their liberty taken away without rights respecting safeguards in place. Deprivation of Liberty Safeguards should ensure that all decisions about a person's care, treatment or residence are decided in a way which ensures their best interests, is accessible to the person and is open to challenge amongst other safeguards. For more information on the MC(NI)A, please see the Northern Ireland Department of Health’s Code of Practice on the Mental Capacity (Northern Ireland) Act and the Deprivation of Liberty Safeguards. Technical details of how the MC(NI)A works in practice are contained in the Mental Capacity (Deprivation of Liberty) (No. 2) Regulations 2019. What are the deprivation of liberty safeguards? The Deprivation of Liberty Safeguards is the system that ensures a person is only deprived of liberty when it is right to do so. The Northern Ireland Department of Health’s explainer sheet on the deprivation of liberty and safeguards explains that if someone wants to deprive a person of liberty they must make sure the following safeguards are in place: They must believe that the person lacks the mental capacity to decide about the deprivation of liberty and must write this down on a statement of incapacity. They must believe that a deprivation of liberty is in the person’s best interests and write this down. They must believe that a deprivation of liberty will help prevent serious harm coming to the person or serious physical harm to other people. They must consult a nominated person. They must have an authorisation for the deprivation of liberty. What are the changes to mental capacity law in Northern Ireland during Covid-19? Schedule 11 of the Coronavirus Act changes some parts of the MC(NI)A to relax some of its requirements in the time of an emergency. These changes become law in Northern Ireland on 2 April 2020, when the Mental Capacity (Deprivation of Liberty) (Amendment) Regulations (Northern Ireland) 2020 came into force. However, the changes were since removed on 10 July 2020 by the Mental Capacity (Deprivation of Liberty) (Amendment) (Revocation) Regulations (Northern Ireland) 2020. This means the changes are no longer in force and the law around mental capacity in Ireland is back to what it was before the Coronavirus Act. We have kept the below information on what the changes were for information purposes. Here are the key changes which were made to the MC(NI)A, as outlined and explained in the Northern Ireland Department of Health’s Emergency Code of Practice: Trust panels The Mental Capacity (NI) Act requires that the three trust panel members meet in person. During the emergency period this is changed to allow remote meetings where the three members are not all present if each member provides a written opinion and the panel’s decision is unanimous. Normally the trust panel has seven working days to make a decision after an application for trust panel authorisation. In an emergency that time is extended to 28 working days. Similarly, the time the trust panel has to make a decision after an application for trust panel extension authorisation is extended from 7 to 28 working days. If these emergency provisions are used, the person who lacks capacity and their nominated person must be notified in writing. This can take any form. Normally a trust panel can grant an interim authorisation lasting 28 days. During an emergency this time is extended to 56 days. If these emergency provisions are used, the person who lacks capacity and their nominated person must be notified in writing. If the modifications are used in relation to applications for trust panel extension authorisations, each Health and Social Care Trust must monitor, justify and report on the use of the modification. Short-term detentions Usually, a medical report for a short-term detention authorisation must be made within two days of examining a person who lacks capacity, and the short-term detention authorisation report to be made within two days of consulting a person who lacks capacity. In an emergency both time limits are extended to five days. Usually, when a short-term detention authorisation is made, the author of the authorisation must consider the views of the nominated person. If the nominated person provides a reasonable objection to the short-term detention the MC(NI)A provides a requirement to consult with an approved social worker, even if the author is an approved social worker. In an emergency, a relevant social worker can be consulted (rather than an approved social worker) if the nominated person makes a reasonable objection. A written statement must be provided by the short-term detention report author noting that the emergency modifications have been made, that the person who lacks capacity has been informed and that either the nominated person has been informed and their views considered, or that it has not been practicable to inform the nominated person and why not. There were also changes made to the Mental Capacity (Deprivation of Liberty) (No. 2) Regulations. As again outlined in the Northern Ireland Department of Health’s Emergency Code of Practice, these were: Professional requirements The requirement that a suitably qualified person has to have training, experience and be appointed is removed. The requirement that a person making an application for trust panel authorisation must be involved in the care of the person who lacks capacity and must not be the person making the medical report is removed. The requirement that a person can only act as a responsible medical practitioner or alternative medical practitioner if he or she is a member of a Royal College is removed. The requirement that a person making a short-term detention authorisation must have two years experience and cannot be the person who made the statement of incapacity is removed. The requirement that a person making an application for trust panel extension authorisation must be involved in the care of the person who lacks capacity and must not be the person making the medical report is removed. Trust panels The requirement for panel members to include one medical practitioner and one approved social worker is removed. What does this mean for people? The Department of Health in Northern Ireland’s Emergency Code of Practice makes it very clear that these changes to the MC(NI)A did not remove the normal deprivation of liberty procedures. Rather, they provided an alternative for when the normal procedures cannot be followed. The rights contained within the Human Rights Act must continue to be respected throughout the pandemic, whatever the changes in other laws. It also stressed that the changes were introduced to make sure that people can still be deprived of liberty when needed during the Covid-19 pandemic, but the safeguards to protect the person being deprived of liberty are still in place. The safeguards should be respected and followed in any decisions to deprive someone of their liberty. The changes have now been removed, so the previous law on mental capacity and deprivation of liberty are back in place. What’s more, the Emergency Code of Practice went as far as to clearly say that “even if a person has tested positive for COVID-19 the person cannot be detained, deprived of liberty or secluded without proper processes and legal support.” If a person who lacks capacity is isolated and prevented from leaving it is likely that the person is deprived of liberty. If this is the case the Deprivation of Liberty Safeguards must be followed. From our work with people with care and support needs and their families and carers, as well as staff in health, care and social work, we know that human rights are not always upheld during deprivations of liberty. These systems will be under even more pressure due to Covid-19. It is too rarely remembered that the Human Rights Act (HRA) places a legal duty on public authorities and service providers to respect and protect human rights. The HRA operates as a foundation law, which means that all other laws, including the Coronavirus Act and the MC(NI)A, have to be applied compatibly with human rights. Which human rights are involved? Human rights should be at the centre of all deprivation of liberty processes and reporting. Important rights which are engaged here include: The right to liberty (Article 5 of the HRA) Liberty can only be restricted in certain circumstances, for example in relation to mental health/capacity issues. When liberty can be restricted this must be authorised by a law (such as the MC(NI)A), and a set of safeguards need to be in place to ensure this is a fair and proportionate restriction. The question should always be: is this the least restrictive option to keep this person/or others safe? Under the right to liberty, safeguards should be met when a decision to deprive someone of their liberty is made. The right to respect for private and family life and home and correspondence (Article 8 of the HRA) This covers people’s right to be involved in decisions about themselves, maintaining relationships with others and protecting well-being. When a person is deprived of their liberty, their ability to maintain their private and family life is restricted. This right can be restricted in some circumstances, but the process for doing that must be rights respecting, i.e. it must be lawful, for a legitimate reason set out in the right itself, and importantly it should be proportionate. The longer the deprivation of liberty process takes, the more concern there is about that person's right to private and family life. The right to non-discrimination (Article 14 of the HRA) This right must be used with another right in the HRA. At BIHR we call it a 'piggy-back' right. The right means that people receiving care should not be discriminated against when accessing care and when decisions about their care are made. Relevant questions to think about are: why is the decision to deprive someone of their liberty being made? Is it objective and reasonable? Or it is based on discriminatory reasons, such as a person’s learning disability, mental health or dementia diagnosis? What happens now? Going forward, it is really important to remember that the changes to the MC(NI)A only relaxed some of the professional requirements and timelines to ensure that the Deprivation of Liberty Safeguards could continue to be used where needed during Covid-19. The changes should only have been used when normal procedures could not be followed. They should not have been used across all practices and decisions, only on a case-by-case basis. All decisions to deprive someone of their liberty must have continued to be made according to the Deprivation of Liberty Safeguards. All changes have now been removed. The rights and duties contained within the HRA continue to be a foundation law, and the MC(NI)A must continue to be applied in ways that are compatible with our rights. Where can I find more information? BIHR’s Coronavirus and Human Rights Hub BIHR Explainer: Changes to Mental Health Law (Northern Ireland) Northern Ireland Department of Health: Emergency Code of Practice on the changes to the mental capacity law in Northern Ireland during Covid-19 Northern Ireland Department of Health hub: the Mental Capacity (Northern Ireland) Act 2016 Northern Ireland Department of Health’s explainer sheet on the deprivation of liberty and safeguards PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.