4 - The Fusion Approach to Mental Capacity Law in Northern Ireland: Possibilities and Challenges

Summary

Introduction

The focus of this chapter is on capacity law in Northern Ireland, specifically the Mental Capacity Act (Northern Ireland) 2016, and exploring how the rights of people with disabilities are being framed, promoted and protected in that context. The central role of participation and values will be examined, and the potentially highly important roles of context and timing will also be acknowledged.

In comparison with other jurisdictions, perhaps the most significant aspect of capacity law in Northern Ireland is not the law itself, which is a largely conventional capacity-based law heavily influenced by the Mental Capacity Act 2005 for England and Wales, but its scope. The Mental Capacity Act (Northern Ireland) 2016 (the Act) will apply to everyone, aged 16 and over, whose ability to make the relevant decision(s), at that time, is sufficiently impaired, regardless of the cause of that impairment. Most importantly this means that the aim is for this relatively new law to completely replace the current mental health law, the Mental Health (Northern Ireland) Order 1986, for those aged 16 and over, rather than be in parallel to a specific mental health law, which is the approach in most other jurisdictions. The approach in Northern Ireland is therefore, as far as we are aware, the first attempt to fully implement the fusion approach, which highlights and addresses the discrimination involved in having separate mental health law which allows compulsory intervention, even when someone has the relevant decisionmaking ability. As will be explored in this chapter, the Northern Ireland context may have also have contributed to the adoption of this approach along with the high level of participation in the process of considering and developing the new law.

The development of the Act in Northern Ireland has been a long process and it is being implemented in stages. The first stage, which began on 1 October 2019, was to implement the aspects of the Act relevant to research with people whose ability to decide to participate in the research may be impaired. The second stage began on 2 December 2019, and that was the implementation of the aspects of the Act in relation to: interventions amounting deprivation of liberty; offences; and the money and valuables of hospital patients or care home residents.