You can download this Explainer as a PDF here

With all the changes to health and social care law that have happened in response to Covid-19, it is worth remembering which laws have not changed and are still in force. This Explainer will look at the laws that still apply in Northern Ireland, including:

  • The Human Rights Act 1998
  • The Northern Ireland Act 1998 (section 75)
  • The Health and Social Care (Reform) Act (Northern Ireland) 2009
  • Other relevant laws

 

Human Rights Act

The Human Rights Act (HRA) is the law in the UK that ensures our human rights are respected and protected. It contains the 16 human rights of the European Convention on Human Rights and puts them into our law here at home. These rights ensure that we are all treated with dignity, respect and without discrimination.

The HRA places a legal duty on public bodies to protect, respect and fulfil human rights across their actions, decisions, policies and services, whenever they interact with people. The duty on officials has three parts:

  1. Respect: duty to not breach human rights.
  2. Protect: duty to take action to safeguard people’s rights.
  3. Fulfil: duty to have the right processes and procedures in place, and to investigate when things have gone wrong.

This duty has not been changed by the Covid-19 pandemic, and any decisions made by a public body that interacts with people, including in health and social care settings, must respect and protect human rights.

Importantly, the HRA is a foundational law. This means that all other UK laws should be compatible with the HRA. As a result, other laws such as the Mental Capacity Act and the Care Act should be applied in a way that respects your human rights. Again, this continues throughout Covid-19, and the Coronavirus Act states that it should be applied in a way this is compatible with human rights.

For more information on the HRA, please see BIHR’s Explainer: The Human Rights Act 

 

Northern Ireland Act

Section 75 of Northern Ireland Act 1998 contains a duty on public bodies to promote equality across all functions in relation to nine equality categories:

  • person of different religious belief, political opinion, racial group, age, martial status or sexual orientation;
  • men and women generally;
  • persons with a disability and without; and
  • persons with dependents and without

Meeting this duty involves more than the elimination of discrimination. The Equality Commission for Northern Ireland explains that the duty “requires proactive action to promote equality of opportunity and encourages public authorities to take action to address inequality among the groups listed above.”

The Northern Ireland Act remains unchanged during Covid-19, so public bodies still have a legal duty to address discrimination and promote equality based on the 9 equality categories. This means when accessing public services, it is unlawful for you to be discriminated because of any of the characteristics listed above.

The Human Rights Act (Article 14) also protects people from discrimination on the above 9 grounds or “any other status” when linked to their human rights.

 

The Health and Social Care (Reform) Act (Northern Ireland) 2009

The Health and Social Care (Reform) Act (NI) 2009 was introduced to put in place patient-led, patient-centred health and care structures in Northern Ireland which are responsive to the needs of patients, clients and carers.

There have been no changes to this law, and it continues to operate in its entirety during Covid-19.

 

Other Relevant Laws

The Coronavirus Act 2020, which came into force on 25 March 2020, made many temporary changes to health and social care legislation across the UK – for more information, please see BIHR’s Coronavirus Hub on changes to law and policy.

  • The Mental Health (Northern Ireland) Order 1986

    The Coronavirus Act allows temporary changes to the Mental Health (Northern Ireland) Order 1986. The changes should only be used if there is no other way to ensure that a person receives the care and treatment required for their mental health issue and to manage risks to themselves and others. They and their nearest relative must be informed and there are additional monitoring and reporting requirements.

    For information on these changes, see BIHR Explainer: Changes to Mental Health Law (Northern Ireland).

  • The Mental Capacity Act (Northern Ireland) 2016

    The Coronavirus Act allows some temporary changes to the Mental Capacity (NI) Act 2016 (MC(NI)A) and, the Mental Capacity (Deprivation of Liberty) (Amendment) Regulations (Northern Ireland) 2020 make some changes to the technical details for the operation of the MC(NI)A contained in the Mental Capacity (Deprivation of Liberty) (No. 2) Regulations 2019.

    The MC(NI)A provides the legal framework for the deprivation of liberty, and the Coronavirus Act contains modifications to the MC(NI)A to relax the requirements of the MC(NI)A in the time of an emergency, primarily around short-term detention and the composition and operation of panels that decide applications. It is important to remember that the changes to the MC(NI)A do not remove the normal deprivation of liberty procedures, and instead provide an alternative for when the normal procedures cannot be followed.

    For more information on these changes, see the BIHR Explainer: Changes to Mental Capacity Law (Northern Ireland), which will be available here once completed.

 

What does this mean for people?

The key thing to take away from this is that, importantly, your human rights and equality protections remain in place throughout Covid-19, no matter what changes have been made to any other laws.

Changes have been made to mental health and mental capacity law in Northern Ireland. However, it is important to know that the changes to the Mental Health (Northern Ireland) Order should only be used if there is no other way to ensure that a person receives the care and treatment, and when the emergency changes are used in a person’s care, their nearest relative must be informed. Also, the limited changes to the Mental Capacity (NI) Act should only be used when normal procedures cannot be followed

Further, is important to remember that health and care services in Northern Ireland must continue to provide patient-led, patient-centred care and adhere to the Health and Social Care (Reform) Act (NI), as there have been no changes to this law.

 

What happens now?

Going forward, it is really important to remember that the laws discussed here are still in place, and that our rights must continue to be protected. The rights and duties contained within the HRA continue to be a foundation law, and all other laws must continue to be applied in ways which are compatible with our rights.

 

Where can I find more information?

 

Codes of Practice for the altered health and social care legislation in Northern Ireland during Covid-19:

 

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.