Mental Capacity Act (Northern Ireland) 2016 Explanatory Notes

  • Nodiadau Esboniadol Tabl o’r Cynnwys

  1. Introduction

  2. Background and Policy Objectives

  3. Overview

    1. Part 1

    2. Remaining Parts

  4. Commentary on Sections

    1. Part 1 – Principles

      1. Section 1 – Principles: capacity

      2. Section 2 – Principle: best interests

      3. Section 3 – Meaning of “lacks capacity”

      4. Section 4 – Meaning of “unable to make a decision”

      5. Section 5 – Supporting person to make decision

      6. Section 6 – Compliance with section 1(2)

      7. Section 7 – Best interests

      8. Section 8 – Compliance with section 2

    2. Part 2 – Lack of Capacity: Protection from Liability, and Safeguards

      1. Chapter 1 – Protection from Liability, and General Safeguards

        1. Sections 9 – 12

      2. Chapter 2 – Additional Safeguards for Serious Interventions

        1. Sections 13 – 14 - Formal assessments of capacity

        2. Section 15 – Nominated person: need to have in place and consult

      3. Chapter 3 – Additional Safeguard: Second Opinion

        1. Sections 16 – 18

      4. CHAPTER 4 – ADDITIONAL SAFEGUARD: AUTHORISATIONS ETC and CHAPTER 6 – EXTENSION OF PERIOD OF CERTAIN AUTHORISATIONS

        1. Sections 19 – 23 - Treatment with serious consequences

        2. Sections 24 – 27 - Deprivation of liberty

        3. Sections 28 and 29 – Attendance requirements

        4. Section 30 – 34 - Community residence requirements

        5. Sections 37 – 44 - Extensions of period of authorisation

      5. Chapter 5 – Additional Safeguard: Independent Mental Capacity Advocate

        1. Sections 35 and 36 – Independent mental capacity advocate

      6. Chapter 7 – Rights of Review of Authorisation

        1. Section 45 – Right to apply to Tribunal

        2. Section 46 – Applications: visiting and examining

        3. Section 47 – Power of certain persons to refer case to Tribunal

        4. Section 48 – Duty of HSC trust to refer case to Tribunal

        5. Section 49 – References etc to Tribunal: persons formerly detained under the Mental Health Order

        6. Section 50 – Duty of HSC trust to notify the Attorney General

        7. Section 51 – Powers of Tribunal in relation to authorisation under Schedule 1

        8. Section 52 – Powers of Tribunal in relation to authorisation under Schedule 2

        9. Section 53 – Sections 51 and 52: additional powers of Tribunal

      7. Chapter 8 – Supplementary

        1. Sections 54-56 – Medical reports: involvement of nominated person and independent mental capacity advocate

        2. Sections 57 and 58 – Provision of information

        3. Section 59 – Failure by person other than D to take certain steps

        4. Section 60 – Part 2 not applicable where other authority for act

        5. Section 61 – Power to make further provision

        6. Section 62 – Disregard of certain detention

      8. Chapter 9 – Definitions for Purposes of Part 2

        1. Sections 63 and 64 – “Serious intervention”

        2. Sections 65 – 67 – Meaning of “emergency” in relation to safeguard provisions

        3. Section 68 – Interpretation of Part 2: general

    3. Part 3 – Nominated Person

      1. Section 69 – Nominated person

      2. Section 70 – Appointment of nominated person

      3. Section 71 – Revocation of appointment

      4. Section 72 - Resignation

      5. Section 73 – Default nominated person

      6. Section 74 – Section 73: the list

      7. Section 75 – Section 73: persons to be disregarded

      8. Section 76 – Section 73: meaning of “carer”

      9. Section 77 – Declaration that particular person not to be nominated person

      10. Section 78 – Notice declining to be a person’s nominated person

      11. Section 79 – Formalities for documents under Part 3

      12. Section 80 – Application to Tribunal for appointment of nominated person

      13. Section 81 – Tribunal’s power to appoint nominated person

      14. Section 82 – Tribunal’s power to disqualify person from being default nominated person

      15. Section 83 – Revocation of Tribunal’s appointment where P regains capacity

      16. Section 84 and 85 – Duties in relation to nominated person

    4. Part 4 – Independent Mental Capacity Advocates

      1. Section 86 – Independent mental capacity advocates

      2. Section 87 – Functions of independent mental capacity advocates: provision of support, etc

      3. Section 88 – Request for independent mental capacity advocate to be instructed

      4. Section 89 – Steps to be taken before independent mental capacity advocate may be requested

      5. Section 90 – Right to declare that no independent mental capacity advocate to be instructed

      6. Section 91 – Instruction of independent mental capacity advocate

      7. Section 92 – Powers of independent mental capacity advocates

      8. Section 93 – Right of person to discontinue involvement of independent mental capacity advocate

      9. Section 94 – Continuing duty of trust in relation to independent mental capacity advocate

      10. Section 95 – Formalities for declarations under Part 4

      11. Section 96 – Power to adjust role of independent mental capacity advocate

    5. Part 5 – Lasting Powers of Attorney

      1. Chapter 1 - Lasting Powers of Attorney

        1. Section 97 – Lasting powers of attorney

        2. Section 98 – Restrictions on scope of lasting power of attorney

        3. Section 99 – Relationship between advance decisions and lasting powers of attorney

        4. Section 100 – Scope of lasting powers of attorney: gifts

        5. Section 101 – Appointment of attorneys: requirements as respects attorneys

        6. Section 102 – Appointment of two or more attorneys

        7. Section 103 – Appointment of replacement attorneys

        8. Section 104 – Appointment of two or more replacements for a single initial appointee

        9. Section 105 – Replacement attorneys: position where two or more initial appointees

        10. Section 106 – Revocation of lasting power etc by donor or on donor’s bankruptcy

        11. Section 107 – Revocation etc: events relating to the attorney

        12. Section 108 – Protection of attorney and others if no power created or power revoked

        13. Section 109 – Reliance on authority of attorney in relation to treatment etc

        14. Section 110 – Powers of court as to lasting powers of attorney

        15. Section 111 – Powers of court as to operation of lasting powers of attorney

    6. Part 6 – High Court Powers: Decisions and Deputies

      1. Section 112 – The court’s power to make declarations

      2. Section 113 – The court’s powers to make decisions and appoint deputies: general

      3. Section 114 – Section 113 powers: care, treatment and personal welfare

      4. Section 115 – Section 113 powers: property and affairs

      5. Section 116 – Appointment of deputies

      6. Section 117 – Restrictions on deputies

      7. Section 118 – Reliance on authority of deputy in relation to treatment etc

      8. Section 119 – Interim orders and directions

      9. Section 120 – Power to call for reports

      10. Section 121 - Powers of Public Guardian or Court Visitor in respect of reports under section 120(2)

      11. Section 122 – Applications to the court

      12. Section 123– Duty to notify Attorney General

      13. Section 124 – Rules of court

    7. Part 7 – Public Guardian and Court Visitors

      1. Section 125 – The Public Guardian

      2. Section 126 – Functions of the Public Guardian

      3. Section 127 – Further powers of the Public Guardian

      4. Section 128 – Duty to notify the Public Guardian

      5. Section 129 – Notifications under section 128: procedure and effect

      6. Section 130 – Court Visitors

      7. Section 131 – Powers of Court Visitors

    8. Part 8 – Research

      1. Section 132 - Research

      2. Section 133 – Section 132:  exception for clinical trials

      3. Section 134 – Approval of research projects

      4. Section 135 – Requirement to consult nominated person, carer etc

      5. Section 136 – Section 135: exception for urgent treatment

      6. Section 137 – Additional safeguards

      7. Section 138 – Loss of capacity during research project: transitional cases

    9. Part 9 – Power of Police to Remove Person to Place of Safety

      1. Section 139 - Power of police to remove person from public place to place of safety

      2. Section 140 - Information to be given on removal

      3. Section 141 - Search of person on exercise of power to remove

      4. Section 142 - Power of police to detain in hospital a person removed from a public place

      5. Section 143 - Power to detain in police station a person removed from a public place

      6. Section 144 - Sections 142 and 143: the detention conditions

      7. Section 145 - Transfer from one place of safety to another

      8. Section 146 - Maximum period of detention under Part 9

      9. Section 147 - Duty to inform certain persons where power of removal or transfer used

      10. Section 148 - Section 147: meaning of “the required information”

      11. Section 149 - Record of detention to be kept

      12. Section 150 - Responsibilities of the appropriate officer

      13. Section 151 - Review of detention

      14. Section 152 - Access to legal advice

      15. Section 153 - Searches of person following removal to place of safety

      16. Section 154 - Searches and examination to ascertain identity

      17. Section 155 - Intimate searches

      18. Section 156 - Annual records

      19. Section 157 - Principles applying for purposes of Part 9

      20. Section 158 - Reasonable belief etc

      21. Section 159 - Power of constable to use reasonable force

      22. Section 160 - Definition for purposes of Part 9

      23. Section 161 - Relationship of Part 9 to other provisions

    10. Part 10 – Criminal Justice

      1. Chapter 1 - Remand to Hospital

        1. Section 162 – Remand to hospital

        2. Section 163 - Section 162: meaning of “accused person”

        3. Section 164 - Section 162: the medical report condition

        4. Section 165 - Section 162: the treatment condition

        5. Section 166 - Effect of remand to hospital

      2. Chapter 2 – Powers of Court on Conviction

        1. Section 167 - Public protection orders with and without restrictions

        2. Section 168 - Section 167: the detention conditions

        3. Section 169 - Section 167: the restriction condition

        4. Section 170 - Further provision about making of public protection orders

        5. Section 171 - Effect of public protection orders

        6. Section 172 - Power to direct the ending of restrictions under a public protection order

        7. Section 173 - Effect of ending restrictions under a public protection order

        8. Section 174 - Hospital direction when passing custodial sentence

        9. Section 175 - Conditions for giving hospital direction

        10. Section 176 - Effect of hospital directions

        11. Section 177 - Interim detention orders

        12. Section 178 - Effect of interim detention orders

      3. Chapter 3 – Detention under a Public Protection Order Without Restrictions

        1. Section 179 - Detention under a public protection order without restrictions

        2. Section 180 - Discharge from detention by responsible medical practitioner

        3. Section 181 - First extension of period of order

        4. Section 182 - Subsequent extensions

        5. Section 183 - Sections 181 and 182: extension reports

        6. Section 184 - Extension of period where responsible person not of the requisite opinion

        7. Section 185 - The criteria for continuation

        8. Section 186 - Extension reports: further provision

        9. Section 187 - Permission for absence

        10. Section 188 - Transfer between hospitals etc

        11. Section 189 - Effect of custodial sentence

      4. Chapter 4 – Detention under a Public Protection Order With Restrictions

        1. Section 190 - Detention under a public protection order with restrictions

        2. Section 191 - Discharge from detention by Department of Justice

        3. Section 192 - Power to recall person who has been conditionally discharged

        4. Section 193- Reports by responsible medical practitioner

        5. Section 194 - Direction for person to attend for purposes of justice etc

        6. Section 195 - Permission for absence

        7. Section 196 - Transfers between hospitals etc

      5. Chapter 5 – Detention under a Hospital Direction

        1. Section 197 - Detention under a hospital direction

        2. Section 198 - Termination of hospital directions

        3. Section 199 - Section 198: meaning of “release date”

        4. Section 200 - Duties and powers to release from detention

        5. Section 201 - Reports by responsible medical practitioner

        6. Section 202 - Permission for absence etc

        7. Section 203 - Transfers between hospitals

      6. Chapter 6 – Unfitness to Be Tried Etc

        1. Section 204 - Procedure where question of unfitness to be tried arises

        2. Section 205 - Finding that the accused did the act or made the omission charged

        3. Section 206 - Procedure in relation to finding of insanity

        4. Section 207 - Powers to deal with person unfit to be tried or not guilty by reason of insanity

        5. Section 208 - Remission for trial where person no longer unfit to be tried

        6. Section 209 - Power to make order where the accused did the act or made the omission charged

        7. Section 210 – Power to make restraining order following finding of unfitness to plead etc

      7. Chapter 7 – Transfer from Prison Etc to Hospital

        1. Section 211 - Power to transfer person serving custodial sentence etc to hospital

        2. Section 212 - Conditions for transfer under section 211

        3. Section 213 - Effect of transfer under section 211

        4. Section 214 - Transfer of civil prisoner or immigration detainee to hospital

        5. Section 215 - Detention in hospital on removal under section 214

        6. Section 216 - Duration of direction under section 214

        7. Section 217 - Transfer to hospital of person remanded by magistrates’ court

        8. Section 218 - Detention in hospital on removal under section 217

        9. Section 219 - Duration of direction under section 217

        10. Section 220 - Transfer of certain other detainees to hospital

        11. Section 221 - Detention in hospital on removal under section 220

        12. Section 222 - Termination of direction under section 220

        13. Section 223 - Conditions for transfer to hospital under section 214, 217 or 220

        14. Section 224 - General provisions about hospital transfer directions

      8. Chapter 8 – Rights of Review of Detention under Part 10

        1. Section 225 - Right to apply to Tribunal

        2. Section 226 - Meaning of “a qualifying person”

        3. Section 227 - Applications: visiting and examination

        4. Section 228 - Power of certain persons to refer case to Tribunal

        5. Section 229 - Duty of HSC trust to refer case to Tribunal

        6. Section 230 - Duty to notify the Attorney General

        7. Section 231 - Powers of Tribunal as to public protection order without restrictions

        8. Section 232 - Powers of Tribunal as to public protection order with restrictions

        9. Section 233 - Sections 231 and 232: the prevention of serious harm condition

        10. Section 234 – Sections 231 and 232: additional powers of Tribunal etc

        11. Section 235 - Effect of conditional discharge

        12. Section 236 - Application and references to Tribunal where person recalled

        13. Section 237 - Applications to Tribunal where person has not been recalled

        14. Section 238 - Powers of Tribunal as to hospital directions and hospital transfer directions

        15. Section 239 – Section 238: additional powers of Tribunal

        16. Section 240 – Section 238: procedure where prevention of serious harm condition is not met

      9. Chapter 9 – Supplementary

        1. Section 241 - Provision of information

        2. Section 242 - Ways in which information must be provided

        3. Section 243 - Section 22 may apply to person detained under Part 10

        4. Section 244 - Absence without permission

        5. Section 245 - Effect of court order or direction on previous authority for hospital detention

        6. Section 246 - Appeals: general

        7. Section 247 - Appeals against orders made on finding of unfitness to be tried etc

        8. Section 248 – Hospital directions: cases stated by magistrates’ courts

        9. Section 249 - Requirements as to written evidence

        10. Section 250 - Interpretation of Part 10: children

        11. Section 251 - Interpretation of Part 10: impairment of or disturbance in the functioning of the mind or brain

        12. Section 252 - Interpretation of Part 10: references to disorder

        13. Section 253 - Interpretation of Part 10: general

    11. Part 11 – Transfer between Jurisdictions

      1. Sections 254 and 255 – Removal of persons detained under Part 2 from Northern Ireland to England or Wales or Scotland

      2. Section 256 – Removal of certain persons detained under Part 10 to England or Wales

      3. Section 257 - Removal of certain persons detained under Part 10 to Scotland

      4. Sections 258 and 259 – Persons to be detained under Part 2 after removal from England or Wales or Scotland to Northern Ireland

      5. Section 260 – Persons to be detained under Part 10 after removal from England or Wales

      6. Section 261 – Persons to be detained under Part 10 after removal from Scotland

      7. Section 262 – Removal or transfer from Northern Ireland: power to make further provision

      8. Section 263 – Persons removed or transferred to Northern Ireland: power to make further provision

      9. Section 264 – Interpretation of Part 11

    12. Part 12 - Children

      1. Section 265 – In-patients under 18: duties of hospital managers

      2. Section 266 and Schedule 8 – Amendments of Mental Health Order: children etc

    13. Part 13 – Offences

      1. Section 267 – Ill-treatment or neglect

      2. Section 268 – Forgery, false statements etc

      3. Section 269 – Unlawful detention of persons lacking capacity etc

      4. Section 270 – Assisting persons to absent themselves without permission

      5. Section 271 – Assisting persons to breach community residence requirement

      6. Section 272 - Obstruction

      7. Section 273 – Offences by bodies corporate

    14. Part 14 – Miscellaneous

      1. Section 274 - Renaming of Mental Health Review Tribunal

      2. Section 275 - Visiting etc powers of medical practitioners in connection with the Tribunal

      3. Section 276 – Power to make regulations about dealing with money and valuables

      4. Section 277 – Contravention of regulations under section 276(2)

      5. Sections 278 and 279 – Expenditure and payment for necessary goods and services

      6. Section 280 – Appointment of approved social workers

      7. Section 281– Miscellaneous functions of HSC trusts

      8. Section 282 – Direct payments in place of provision of care services

      9. Section 283 – International protection of adults

      10. Section 284 – Review of law relating to advance decisions

      11. Sections 285 and 286 – Matters excluded from the Act

      12. Section 287 – Relationship of Act with law relating to murder etc

    15. Part 15 – Supplementary

      1. Section 288 – Codes of practice

      2. Section 289 – Effect of code

      3. Section 290 – Provision of information by HSC trusts and the Department

      4. Section 291 – Provision of facilities by HSC trusts and the Department

      5. Section 292 - Warrants

      6. Section 293 - Warrants: persons liable to be detained under 1983 Act or 2005 Order

      7. Section 294 – Provisions as to custody, detention etc

      8. Section 295 – Retaking of persons escaping from legal custody

      9. Section 296 – Special accommodation

      10. Section 297 – Panels constituted to decide applications: general provision

      11. Section 298 – Protection for acts done in pursuance of Part 9 or 10

      12. Section 299 – Risk of serious physical harm to others

      13. Section 300 – Medical practitioners who may make certain medical reports

      14. Section 301 – Documents appearing to be duly made

      15. Section 302 – Regulations

      16. Section 303 – Consequential amendments and repeals

      17. Section 304 – Persons “unconnected with” a person

      18. Section 305 – Meaning of “mental disorder”

      19. Section 306 – Definitions for purposes of Act

      20. Section 307 – Commencement etc

      21. Section 308 – Short title

  5. Hansard Reports

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