Consultation on the Commencement of Provisions under the Mental Capacity Act (Northern Ireland) 2016 relating to "Acts of Restraint"

Overview

This consultation seeks stakeholder views on the commencement of sections 9(4)(a) and 12 of the Mental Capacity Act (Northern Ireland) 2016 (MCA) in relation to 'Acts of Restraint' and an accompanying Code of Practice. The consultation will run for 12 weeks from 9 September to 1 December 2024.

Why your views matter

We are keen to hear the views of all MCA stakeholders, and particularly those who may be directly impacted by the commencing, or failure to, of sections 9(4)(a) and 12. The MCA, when fully commenced, will fuse together mental capacity and mental health law for those aged 16 years old and over within a single piece of legislation, as recommended by the Bamford Review of Mental Health and Learning Disability. The original implementation plan, as agreed at the time of enactment in 2016, aimed for full commencement by April 2020.  It soon became clear that this timescale for full MCA commencement would not be achievable. A decision was therefore taken in March 2019 to commence the MCA in a phased approach, with Phase 1 taking place between October and December 2019. 

While officials intend to develop an up-to-date MCA Implementation and Funding Plan that will inform future decisions on full MCA implementation, including resource need, cost and work required to deliver on all remaining MCA provisions, the Department has been made aware of immediate challenges being faced within Health and Social Care (HSC) Trusts as a result of phased commencement that require resolution.

Section 9 of the MCA introduces the concept of “protection from liability” and outlines the safeguards that must be in place for such protection.  Protection from liability is a protection for a person (“D”) doing an act in relation to a person (“P”), aged 16 and over, who lacks capacity to consent to the act. The protection will only apply where all safeguards have been put in place to ensure that the rights and interests of P are preserved, except in emergencies.

Section 12 of the MCA outlines the additional safeguard that must be met when carrying out an ‘Act of Restraint’ on a person who lacks capacity to make decisions around their care, treatment and welfare.

Through engagement with key MCA stakeholders, the Department was made aware of significant challenges being faced by HSC staff as a result of sections 9(4)(a) and 12 of the MCA not yet being commenced.  Currently, HSC Trust staff must seek a declaratory order from the High Court for patients who are subject to Deprivation of Liberty (DoL) Safeguards and have a Trust Panel Authorisation for same, but whose care plans include restraint / other restrictions / interventions.

As a result the Department is seeking your views on commencing these provisions related to 'Acts of Restraint' and the accompanying Code of Practice, which will offer guidance to those working with those who lack, or may lack, capacity in relation to acts of restraint.