Analysis: the Mental Capacity Bill's balancing act

Stormont is abuzz over its upcoming Mental Capacity Bill. Northern Ireland will be a pioneer, drafting the first ever capacity legislation anywhere that treats all adults in the same fundamental way.

The superlatives are flowing, the future is bright, ministers from different parties are hand-in-hand. But has rhetoric got ahead of reality?

Cheers for a path newly travelled are premature until we know the destination. However, it is hard to argue the current situation is satisfactory.

For decades, Northern Ireland has rattled along without fully-tailored legislation for this emotive issue. Parts of the Mental Health (NI) Order 1986 have covered capacity with regard to mental illness, while wider issues have been built case by case.

The absence of an exhaustive framework cannot have helped either with quality of services or perceptions about the quality of services, this lack of clarity inevitably leading to confusion.

Extreme public sensitivity around this issue, and the circumstances in which the state or its various agencies can intervene to make choices on behalf of an individual, are obvious. Transparency is vital.

The ministers' idea

The concerns of those with mental illness have historically been separated from the treatment of capacity generally, and this remains the case in England, Scotland and Wales, where fresh legislation has already proceeded.

David Ford and Edwin Poots - and, presumably, Jim Wells - believe bringing forward a single piece of legislation covering capacity for all adults in NI will provide simplicity, help tackle stigmatism, and is no less than “an opportunity to be world leaders”.

The sixth World Congress on Mental Health and Deafness was held at Queen’s University in September and heard the changes will be “historic” for those with mental health issues as, in a global first, they will not be considered any differently from other adults when it comes to capacity.

Behind all the bravura is a sound principle: why should our core idea of mental capacity, and the way we define capability, be different between any one person and another?

Public consultation on the proposed new bill closed at the start of the month. The Justice Minister and new Health Minister now have decisions to make on what Messrs Ford and Poots declared “a once-in-a-generation opportunity to reform this important area of law”.

But are there problems with their approach?

Differing needs

NICVA responded to the consultation after discussion with members who work with those affected, and it became clear through the feedback that different groups have differing needs, and that this goes beyond mental health: older people, those with learning disabilities, individuals within the criminal justice system and children and young people all have varying concerns.

There is overlap, of course – for instance, those involved with the criminal justice system have higher incidences of learning difficulty than the general population – but the specific needs and requirements of each of these areas can be very different.

The May consultation document released by DoJ and DHSSPS does recognise this, to a certain extent, including having specified sections addressing children and young people and the criminal justice system.

However, it does not go into great detail about the needs of those with learning disabilities, while older people are only mentioned once in the entire document.

At the top of its criminal justice section it states: “The Justice Minister agreed that whatever would be developed for the general population in terms of mental capacity legislation should also be applied to persons subject to the criminal justice system.”

This merely reiterates the desire for a single framework, but the document goes on to cite the “specific challenges the criminal justice system would face” from upcoming legislation.

NICVA’s concerns about the single-strand approach followed by DHSSPS and DoJ is simply a reflection of concerns raised by members. Organisations representing different sections of society had different emphases when discussing capacity.

The ministers recognise that, with help, many people who may lack the ability to make proper decisions can be enabled to do so – i.e. that capacity is to some degree a function of wider provision – but this only complicates the picture.

It is one thing drafting a law calling stating that suitable support should be provided in all cases before a capacity decision is made, but in practice this means very different things for an older person and someone with highly significant autism.

Members’ concerns

In members’ discussions with NICVA, Mencap argued that “provision of support is often key to being able to make decisions, routine and serious” for those with learning disabilities, and that the law must “make the right to make decisions and choices a reality for people with a learning disability.”

In order to prevent this from happening there must be a clear measure of baseline support for people with learning disabilities, and this characterisation must be satisfactory to the sector.

But Mencap went even further: it believes that enabling or assisting personal decision making should be the “primary purpose” of the legislation. This is clearly a major concern for the learning disability sector.

Similar worries extend elsewhere, such as with older people, but there is no guarantee that the minimum standards of support will be the same for each group - or even be measurable in the same terms.

Age NI welcomed the Bill for creating “a fundamental shift” in respect for personal autonomy, saying that those they represent often feel “invisible and silenced” by professionals.

However, they have highlighted the Bill’s principle of the presumption of capacity as absolutely vital where assessments are being made, warning that stereotyping can often adversely older people, particularly those with dementia.

An understandable fear is that if an older person begins to have decisions made for them, they will never again be deemed suitable to make their own decisions. Underpinning all this is the fact that when older people make decisions under the remit of the bill, frequently it will be in a time of crisis - making it all the more important that they are given the best opportunity to make their own choices.

Respondents also said families’ roles need to be recognised and valued. This is true in all circumstances, but the circumstances of younger relatives helping an older person with dementia, perhaps coming to the end of their life, are unlike those of parents looking out for a 17 year old with severe learning disabilities.

Making the Mental Capacity Bill work

NICVA believes “existing cultural and organisational practice” will need to change enormously to allow new legislation to work, citing fears around ageism, existing perceptions about those with learning disabilities, and a criminal justice system “based on punishment rather than treatment”.

Listing these issues highlights the difficulty of discussing the Mental Capacity Bill without recourse to various different groups of people. Similar concerns may be shared across sectors, but the specifics can be very different.

Communicating reasons for a new law can just as crucial as the legislation itself. The more sensitive the issue, the more important communication becomes.

Can the upcoming legislation provide sufficient flexibility for the different groups affected - older people, those with learning disabilities, children and young people, and so on? And, if it does, will it be able to maintain its stated purpose to be a single, comprehensive law?

Whether demarcation is a core part of the new legislation or secondary, through official guidance or clarification, the particular needs of different groups of individuals will need to be addressed by the Executive.

Ultimately the mental capacity legislation will be succeed or fail depending on whether it properly empathises with people falling under its remit and their loved ones. However it is framed, the new bill will see emotions run high.

Its drafting should be evidence-based, and as rational and intelligent as possible – just like any legislation – but this alone will not make the new processes successful.

Central interventions into people’s lives are the most sensitive actions a government, or its agencies, can undertake with its citizens. Clear and consistent communication – both directly to the public, and to and through support organisations – is vital.

Responsibility for the MCB is in many ways an unenviable task. The Health and Justice Ministers do not have a straightforward job to do.

Community and voluntary organisations have a huge role to play, in both directions - both dealing with politicians and with the public. Whether the upcoming legislation remains unitary or not, the sector’s good advice must be heeded and its assistance sought out.