The new Mental Capacity Act (Northern Ireland) 2016

It is fair to say that the Mental Capacity Act (Northern Ireland) 2016 (the Act) has been a long time in the drafting. It is also fair to say that we are not there yet!

The Act received royal assent in March 2016 and in many respects it mirrors the English and Welsh Mental Capacity Act 2005, but it is not identical. In particular, the Act includes provisions relating to capacity within the criminal justice system. Those provisions are outside the scope of this article.

All aspects of the Act were to have been fully implemented during the life of the outgoing Northern Ireland Assembly but the Assembly collapsed in January 2017 and it is unclear where the current political crisis leaves matters.

The Act deals with a number of key areas which I will look at in turn.

Capacity

The statutory presumption of capacity is contained within the Act and it is made clear that assisted/supported decisions must be attempted in respect of a person (P) before their lack of capacity to make a decision can be inferred. Lack of capacity cannot be inferred simply because P makes unwise decisions or on the basis of their age, appearance, condition or behaviour. The Act clarifies that capacity is issue-specific and states that P will only be considered unable to make a decision if they cannot understand and retain information long enough to do so, appreciate the relevance of the information and communicate their decision.

Best interests

The Act introduces a statutory requirement that if any act is undertaken or decision is made on behalf of P it must be in their ‘best interests’. All relevant circumstances must be considered and the Act sets out relevant matters. Any person making a decision for P must consult with and take into account the views of ‘relevant people’ identified in the Act. Such a person must also consider whether the same purpose can be achieved in a less restrictive way and whether the act proposed may cause harm to others with resulting harm to P.

Lasting powers of attorney (LPAs)

As with an enduring power of attorney (EPA) under the current system, P can appoint attorneys under an LPA to manage their property and affairs. However, an LPA can also be used to appoint an attorney to deal with health and welfare issues. Originally the Act was going to replace EPAs with LPAs completely but EPAs have been retained alongside LPAs for the time being. How this will work in practice remains to be seen. As under the MCA 2005, LPAs must be registered upon creation with the, hopefully soon-to-be-created, Office of the Public Guardian (OPG).

Advance decisions

Unlike the MCA 2005, the Act does not codify the common law rules in relation to advance decisions (ADs). However, an AD will still be effective under the common law and section 11 of the Act expressly excludes any protection from liability to a person who carries out treatment in contradiction of an AD, without obtaining the authority of the court, as long as the AD is valid under the common law.

Protection from liability and safeguards

Rather than give defined individuals power to intervene, part 2 of the Act provides protection from liability in certain cases through the use of the doctrine of necessity.[1] General safeguards are imposed by the Act and additional safeguards are also imposed where the intervention is serious. Further safeguards in some cases may be required, e.g. authorisation by a Health and Social Care Trust panel.[2] Protection from liability does not apply to negligent acts.

Other decision-making mechanisms

High Court

The High Court will have powers under the Act which mirror those of the Court of Protection in England and Wales. The High Court will be able to appoint deputies that will replace the current system of controllership, and deputies will be able to take decisions in relation to care, treatment and personal welfare – not just P’s property and affairs.

Office of the Public Guardian

Part 7 of the Act creates a new role of Public Guardian (PG) to be supported by an OPG. The PG will establish and maintain a register of LPAs, EPAs and deputies and supervise the work of deputies, report to the Northern Ireland High Court on this and investigate complaints about attorneys and deputies.

In summary, the Act heralds huge change for Northern Ireland in an area where other parts of the British Isles have already forged ahead, in many cases some considerable time ago. How well the new legislative framework and the OPG will operate only time will tell.



[1] Section 9, Mental Capacity Act (Northern Ireland) 2016

[2] There are five Health and Social Care Trusts in Northern Ireland. The trusts give services to the public locally and on a regional basis


Michael Graham is Head of the Private Client Department at Cleaver Fulton Rankin and a founding member of STEP Northern Ireland.Michael is a Director and Head of Private Client at Cleaver Fulton Rankin, one of Northern Ireland’s leading law firms. Michael specialises in trusts, tax, the administration of estates and issues affecting elderly clients, and carries out a large volume of Office of Care & Protection work. He is a founding member and past Chair of STEP Northern Ireland branch and is also one of only two full accredited members of Solicitors for the Elderly in Northern Ireland. Michael sits on the Non Contentious Business Committee of the Law Society of Northern Ireland and has been involved in lobbying on behalf of the Society in relation to the Mental Capacity Act (Northern Ireland) 2016, which is still in the process of being implemented. Michael is a member of the STEP Mental Capacity SIG and also regularly contributes to journals and other publications including The International Protection of Adults (OUP 2015). Michael is consistently ranked in The Legal 500 UK and Chambers and Partners as a Band 1 practitioner in the Private Client field.