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Mental Capacity Act (Northern Ireland) 2016

  • Explanatory Notes Table of contents

Please note:

All reference to 'Parts' and 'sections' are from the Mental Capacity Act (Northern Ireland) 2016. For other versions of these Explanatory Notes, see More Resources.

  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

  • Explanatory Notes Table of contents

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