Statutory Rules of Northern Ireland
2019 No. 190 (C. 6)
Mental Capacity
The Mental Capacity (2016 Act) (Commencement No. 1) (Amendment) Order (Northern Ireland) 2019
Made
27th September 2019
Citation and interpretation
1.—(1) This Order may be cited as the Mental Capacity (2016 Act) (Commencement No. 1) (Amendment) Order (Northern Ireland) 2019.
(2) In this Order “the principal Order” means the Mental Capacity (2016 Act) (Commencement No. 1) Order (Northern Ireland) 2019(3).
Amendments of the principal Order
2.—(1) The principal Order is amended as follows.
(2) For Article 2 there shall be substituted—
“Appointed days for provisions coming into operation
2.—(1) The day appointed for the coming into operation of the provisions of the Act specified in Part 1 of the Schedule, in so far as it relates to an act that is research, is 1st October 2019.
(2) The day appointed for the coming into operation of the provisions of the Act specified in Part 2 of the Schedule for all purposes is 2nd December 2019.
(3) The day appointed for the coming into operation of the provisions of the Act specified in Part 3 of the Schedule, in so far as it relates to an act that is a deprivation of liberty, offences or section 276 (power to make regulations about dealing with money and valuables), is 2nd December 2019.
(4) The day appointed for the coming into operation of the provisions of the Act specified in Part 4 of the Schedule, in so far as it relates to an act that is a deprivation of liberty, is 2nd December 2019.
(5) The day appointed for coming into operation of the provisions of the Act specified in Part 5 of the Schedule, in so far as it relates to an act that is a deprivation of liberty, is 2nd December 2020.”
(3) For the Schedule there shall be substituted—
Article 2
“SCHEDULE
PART 1
Provisions coming into operation on 1st October 2019 in so far as it relates to an act that is research
| Provisions of the Act | Subject Matter |
|---|---|
| Sections 1 to 8 | Principles, including capacity assessment and best interests |
| Sections 132 to 138 | Research |
PART 2
Provisions coming into operation on 2nd December 2019 for all purposes
| Provisions of the Act | Subject Matter |
|---|---|
| Section 266(1)(c) and Schedule 8 paragraphs 1, 2, 3(1), (2), (3) but omit after “(Northern Ireland) 2016” and (9), 4 but omit until “In-patients under 16: duties of hospital managers”, 38, 39, 47, 48(1), (2), (5) and (6), and 71”. | Amendments to the Mental Health (Northern Ireland) Order 1986 to allow for a functioning Review Tribunal and to provide a duty on hospital managers in relation to age appropriate accommodation |
| Section 274 | The Review Tribunal - renaming |
| Section 276 | Money and valuables |
| Section 303(2) and Schedule 11 in so far as it relates to Article 83 of, and Schedule 3 paragraph 4(1) and 5 to, the Mental Health (Northern Ireland) Order 1986 | Repeals of parts of the Mental Health (Northern Ireland) Order 1986 |
PART 3
Provisions coming into operation on 2nd December 2019 in so far as it relates to an act that is a deprivation of liberty, offences or section 276 (power to make regulations about dealing with money and valuables)
| Provisions of the Act | Subject Matter |
|---|---|
| Sections 1 to 8 | Principles, including capacity assessment and best interests |
PART 4
Provisions coming into operation on 2nd December 2019 in so far as it relates to an act that is a deprivation of liberty
| Provisions of the Act | Subject Matter |
|---|---|
| Section 9(1) to (3) | Protection from liability - general |
| Section 9(4)(b) | Protection from liability – additional safeguards |
| In section 9(4)(d) “sections” and “24,26” | Protection from liability – additional safeguards |
| Section 9(5) and (6) | Protection from liability – help and support and parents |
| Section 10(1) | Limitations of section 9 |
| Sections 13 to 15 | Additional safeguards – formal assessment of capacity and nominated persons |
| Section 24 | Deprivation of liberty – additional safeguards |
| Section 25 and Schedule 1 paragraphs 1, 2(1), 2(2)(b), 2(3), 2(4)(b), 3, 5 to 8, 10, 13 to 16, 19, 20 and 22 to 27 and Schedule 2 | Deprivation of liberty – additional safeguards |
| Sections 26 and 27 | Deprivation of liberty – additional safeguards |
| Sections 37 to 39 | Extensions of authorisation |
| Section 40 and Schedule 3 paragraphs 1, 2(1), 2(2), 2(3)(a), 3 to 9 | Extension of authorisation |
| Section 41(1), (2)(b), (3) and (4) | Extensions of authorisation |
| Section 42 | Extensions of authorisation |
| Section 43(1) to (6) and (7)(a) | Extensions of authorisation |
| Section 44 | Extensions of authorisation |
| Section 45(1) to (3) | Review Tribunal applications |
| Section 45(4) but omitting “section 29(4) or 32(4) or” | Review Tribunal applications |
| Sections 46 to 48 | Review Tribunal applications |
| Section 50(1)(a), (b) but omitting “or (d)”, (c), (2) and (3) | References to the Tribunal |
| Section 51(1) to (3), (4)(b) and (5) | Review Tribunal powers |
| Sections 52 and 53 | Review Tribunal powers |
| Section 54 | Medical reports and nominated person |
| Section 56(1), (2)(a), (3) and (4) | Medical reports and emergency situations |
| Sections 57 to 59 | Provisions of information and other supplementary provisions |
| Section 60(1) and (2)(d) | Acts where Part 2 is not applicable |
| Sections 61 and 62 | Power to make further provisions and disregard |
| Section 63(2)(a) | Protection from liability – definition of serious intervention |
| Section 64 | Protection from liability – definition of serious intervention |
| Section 65(1) but omitting “16” to “20” and “28 and 35”, (2) to (5) | Emergency provisions |
| Section 66(1)(a), (b), (d) but omitting “19,20” and “28”, (2) to (6) | Emergency provisions – definitions etc |
| Sections 67 to 68 | Failure by person other than D to take steps to ensure safeguards are met and interpretations of Part 2 |
| Sections 69 to 79 | Nominated persons provisions |
| Section 80(1) to (4), (5)(a) to (c), (f) and (g), (6) and (7) | Nominated persons provisions |
| Sections 81 to 85 | Nominated persons provisions |
| Section 267(1), (2)(a), (3) and (4) | Offence of ill-treatment and neglect |
| Section 268(1), (2), (3)(a), (c), (d), (4), (5) | Offence of forgery, false statement, etc |
| Section 270 | Offence of assisting a person to absent themselves |
| Section 272(1) to (3), (4)(b) until “48” and (c) but omitting “or 126” | Offences of obstruction |
| Section 273 | Offences by bodies corporate |
| Section 275 | Review Tribunal |
| Section 280 | Approved social workers |
| Section 281 | Miscellaneous functions of HSC trusts |
| Section 288(1)(a) to (c), (e) and (i), (2) to (8) | Code of Practice |
| Section 289(1), (2)(a), (b), (3) and (4) | Code of Practice |
| Sections 290(1) and (2)(a), (c) and (d) and 291(1) and (2)(a) and (c) and (3) | Provision of information and facilities |
| Section 292 | Warrants |
| Section 296 | Special accommodation |
| Section 297 | Trust panels |
| Section 299 | Risk of serious physical harm to others |
| Section 300(1)(a) and (c) to (e), and (2) to (4) | Medical practitioners who can make medical reports |
| Section 301 | Documents appearing to be duly made |
PART 5
Provisions coming into operation on 2nd December 2020 in so far as it relates to an act that is a deprivation of liberty
| Provisions of the Act | Subject Matter |
|---|---|
| Section 269 | Offence of unlawful detention” |
Sealed with the Official Seal of the Department of Health on 27th September 2019.
Mark Lee
A senior officer of the Department of Health.
EXPLANATORY NOTE
(This note is not part of the Order)
This Order amends the Mental Capacity (2016 Act) (Commencement No. 1) Order (Northern Ireland) 2019 by changing the commencement date of the Mental Capacity Act (Northern Ireland) 2016 for the purposes of deprivation of liberty, offences and money and valuables to the 2nd December 2019. The commencement date for the purposes of research remains the 1st October 2019. The commencement date for the offence of unlawful detention is changed to 2nd December 2020.
This Order also commences a further provision, section 299 of the Mental Capacity Act (Northern Ireland) 2016, on 2nd December 2019. This section provides the evidence required when determining serious physical harm to others.