Mental Capacity Legislation

Health Minister Edwin Poots and Justice Minister David Ford launched the consultation on a draft Mental Capacity Bill and proposals relating to those in the Criminal Justice system on 27 May billing it as “a once-in-a-generation opportunity to reform this important area of law.”

The draft Mental Capacity Bill will introduce a single, statutory framework governing all situations where a decision needs to be made in relation to the care, treatment (for a physical or mental illness) or personal welfare, of a person aged 16 or over, who lacks capacity to make the decision for themselves

Discussions at our consultation focused on five key areas: mental health, older people, learning disability, children and young people and criminal justice.

The themes emerging from the discussions across these five areas were:

• The need for transparency at all levels of decision making in the new process. Particularly in relation to timescales and who is responsible for making the final decision.
• The importance of the role of advocacy in any new process. Questions still remain around who gets to select advocates, the role of carers in advocacy, the importance placed on the advocates’ role in decision making and the independence of advocates.
• The crucial role of explaining the new rights and process to service users and their advocates. This will take dedicated resources and specific skill sets.
• The fact that existing cultural and organisational practice will need to change significantly to allow the new proposals to work. This applies areas such as the general culture of ageism, existing perceptions of people with learning disabilities and a criminal justice system based on punishment rather than treatment.

The closing date for responses to the consultation is Tuesday, 2 September. We will be sharing information for people from across the sector to help inform their responses. If you have briefings, draft responses or research you would like to share with others or want to raise any points on the mental health capacity bill please email [email protected].