BIHR Explainer- Coronavirus Law & Policy: Changes to Mental Health Law (Northern Ireland) Please note: the changes to mental health law in Northern Ireland during Covid-19 were suspended on 10 August 2020 by the Coronavirus Act 2020 (Suspension) Order (Northern Ireland) 2020. This Explainer will be updated to reflect this. The information below is out of date. Download this Explainer as a PDF here. In response to Covid-19, the UK government introduced a range of temporary changes to health and care legislation via the Coronavirus Act 2020. The Coronavirus Act includes changes to health and care legislation in Northern Ireland as well as England, Scotland and Wales. The Northern Irish Executive gave their consent to these changes. The Coronavirus Act 2020 makes temporary amendments to the Mental Health (Northern Ireland) Order 1986, relaxing some of the requirements of the Order. The Coronavirus Act is time-limited for two years and will be subject to six monthly reviews What is the Mental Health (Northern Ireland) Order 1986? In Northern Ireland, mental health issues are covered by the Mental Health (Northern Ireland) Order 1986. This Order covers the assessment, treatment and rights of people with a mental health condition. Why have these changes been introduced? In late March, the UK government presented the Coronavirus Bill to parliament, asking them to approve possible suspensions to several laws about people’s care and support during the Covid-19 pandemic. The Government said these changes may be necessary because many public services would face significant pressures due to Covid-19 and the effects the pandemic may have on staff and resources. Parliament passed this law, the Coronavirus Act on the 25 March 2020. One part of the Coronavirus Act deals with the Mental Health (Northern Ireland) Order 1986 and makes some changes to the safeguards that are there to protect people detained in mental health hospitals. According to the Mental Health (Northern Ireland) Order 1986 Emergency Code of Practice Coronavirus Act 2020 , the changes have been made to ensure that people “can still be compulsorily admitted and detained in hospital when needed, even where a significant proportion of the workforce is unavailable, while still maintaining safeguards to protect the person subject to detention.” What has changed? Schedule 10 of The Coronavirus Act allows the following changes to the Mental Health (Northern Ireland) Order 1986: An application for assessment may be made by a relevant social worker in accordance with Article 4 if the social worker is of the opinion that an application should be made but that it is impractical or would involve undesirable delay for the application to be made by an approved social worker. A person making an application for assessment must have personally seen the patient not more than 2 days before date of application. This has changed to five days. The period for which a patient can be detained following report by medical practitioner has effect has effect as if for “48 hours” substituted to “120 hours”. Period for which patient can be detained pending report by medical practitioner has effect for “6 hours” substituted “12 hours.” The period within which patient admitted to hospital in pursuance of an application for assessment must be examined by a medical practitioner has effect as if for “immediately after” substituted to “as soon as practicable and not later than 12 hours after”. You can read all of these changes in more detail here. When these emergency modifications are used, the patient and their nearest relative must be informed. There are also additional monitoring and reporting requirements introduced by the Act, to justify the decisions that have been taken in emergency circumstances and mitigate against the risk of arbitrary decisions being taken. What does this mean for people with a mental health issue in Northern Ireland? The impact of these changes will fall on people who are already in vulnerable situations. Any changes to the length of unnecessary detention could have a significant impact on the mental health of the individual involved. We must think about these changes not as a list of sweeping measures but on an individual by individual basis. What could any of these changes look like for a person with mental health issues in that already vulnerable situation of being detained. What does this mean for Human Rights in Northern Ireland? The changes to Mental Health (Northern Ireland) Order 1986 set out in the Coronavirus Act could have an impact on the fundamental human rights of those accessing mental health services in Northern Ireland. It is crucial that any changes made to an individual’s mental health care, treatment and recovery as a result of the Coronavirus Act are applied compatibly with human rights law. Northern Ireland through the UK ratification process are signed up to various United Nations and Council of Europe Human Rights Treaties. Under the Good Friday Agreement (1998), the European Convention on Human Rights (ECHR) was incorporated into the domestic law of Northern Ireland through the Human Rights Act. Northern Ireland (like Scotland) have the additional power to strike down legislation made in Northern Ireland which does not conform to the ECHR. The European Convention on Human Rights (1950) and the Human Rights Act (1998) ensure that the public bodies must respect, protect and fulfil individual’s human rights even (or especially!) during crisis like Coronavirus. These human rights laws which apply to Northern Ireland have not been relaxed or changed in any way by the Coronavirus Act. Which Human Rights are involved? The changes set out above if used by mental health staff without proper human rights knowledge and training could have a worrying impact on various rights set out in the Human Rights Act. The right not to be tortured or treated in an inhuman or degrading way (Article 3 of the HRA) For example, if a patient is detained following a report for up to 120 hours instead of 48 without proper safeguards in place. Or for 12 hours instead of 6 whilst waiting for a report. Professionals should think about the duration of the detention and the mental and physical impact on the individual involved. This is an absolute human right and can therefore never be lawfully restricted. The right to liberty (Article 5 of the HRA) If a patient is detained for longer than necessary without the proper safeguards in place. This is a non-absolute human right and can therefore only be restricted if is lawful, legitimate and proportionate. It would not be lawful if the legal safeguards were not being met, regardless of Coronavirus. The right to respect for private and family life and home and correspondence (Article 8 of the HRA) This covers autonomy. For example, if a person is detained or subject to treatment as a result of these legal changes but not supported to be involved in the decisions about their body and life. Article 8 also covers being able to maintain ordinary family relations as well as mental and physical wellbeing which could be impacted by these proposed changes. This is a non-absolute human right and can therefore only be restricted if the restriction is lawful, legitimate and proportionate. The right to be free from discrimination (Article 14 of the HRA) A person cannot have their rights restricted on the grounds of discriminatory attitudes to mental health. For example, using the changes to legislation to detain someone for longer than is necessary on the basis that the person’s current mental health may prevent them from being able to challenge their detention or demand safeguards are met. Are these changes in force in Northern Ireland? These changes were made to the Mental Health (Northern Ireland) Order 1986 when the Coronavirus Act became law on 25 March 2020. However, these statutory powers should only be used if there is no other way to ensure that the person receives the care and treatment required for the mental disorder and to manage the risk to the person or others. At all times, the person’s human rights should be at the forefront of decision making, When these emergency modifications are used, the patient and their nearest relative must be informed. There are also additional monitoring and reporting requirements introduced by the Act, to justify the decisions that have been taken in emergency circumstances and mitigate against the risk of arbitrary decisions being taken. What happens now? These changes can remain in force for up to 2 years from March 2020 but must be reviewed every 6 months. As time passes more information will be available about how these changes have been used in Northern Ireland during this time. It is crucial that staff applying any of these legal changes are fully trained in human rights and able to recognise when applying a legal change made by the Coronavirus Act may risk a person’s human rights. Where can I find more information? BIHR Information BIHR’s Coronavirus and Human Rights Hub BIHR Explainer- Coronavirus Law & Policy: Changes to Mental Health Law (England) for information on the other possible changes to the MHA, which apply in Wales. Local Information and Support Department of Health, Mental Health (Northern Ireland) Order 1986 Emergency Code of Practice Coronavirus Act 2020 The Northern Ireland Human Rights Commission links to the below orgs for helpful and support around mental health in Northern Ireland: MindWise - MindWise supports those at risk of, and affected by, severe mental illness and mental health difficulties. Inspire - Formerly the Northern Ireland Association for Mental Health (NIAMH), provides local support for those with mental health needs in locations across Northern Ireland (see website for details). Children’s Law Centre - The Children’s Law Centre can provide legal advice and assistance and in some cases representation for young people with mental health issues. Law Centre NI - The Law Centre runs a free specialist legal advice line for mental health patients and their families. The advice line is staffed by experienced legal advisers. Call 028 9024 4401, 9.30am to 1pm, Monday to Friday. 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.