Mental Health Law Northern Ireland Professor Anselm EldergillComparative Mental Health Law Conference, London, 2006
1 — IntroductionDemography and mental healthservices
Demography and Government Population: Approximately 1.7m. The economies of scale achieved in GB are not achievable in Northern Ireland. Government: The Secretary of State for Northern Ireland suspended the Northern Ireland Assembly and the Executive on 14 October, 2002. The Secretary of State/Northern Ireland Office has assumed responsibility for the direction and control of the Northern Ireland Departments. The Department of Health, Social Services & Public Safety performs functions similar to those of the Department of Health. Health and personal social services employ around 60,000 people, accounting for over 8% of all persons in employment in Northern Ireland.
OSullivan, Re Application for Judicial Review  NIQB 16FACTSOn 17 January 1999, the applicant was admitted to Knockbracken under Part II of the 1986 Order,having set fire to her house upon three occasions in a single week. She had previously set fire topremises in which she resided and in April 1992, and in March 1996 she was convicted of arson.Her stay was difficult and unsettled, with frequent attempts at self-harm. On 5 February 2000, sheattacked a sleeping elderly female patient with a razor blade. Her victim sustained lacerations to herface and forearms. She was assessed by a consultant forensic psychiatrist at the State Hospital,Carstairs, and transferred there on 13 April 2000.On 14 September 2000, her consultant in Northern Ireland reviewed. No suitable unit was availablein Northern Ireland and it was agreed that the initial plan of a six-month stay would have to beextended. The applicants solicitors accepted that she required special accommodation due to herviolent and dangerous propensities.The applicant sought judicial review of the decision removing her to the State Hospital at Carstairs.She also sought a declaration that, in failing to provide special accommodation for persons requiringtreatment under conditions of special security, the Department was in breach of its obligationsunder Article 110 of the Mental Health (Northern Ireland) Order 1986 and the Human RightsAct 1998.
OSullivan, continuedHELD (COGHLIN J)The power of the Department to authorise the applicant’s transfer to Carstairs under Article 134(6)was the type of legal power exercised by an administrative body that did not attract the applicationof Article 6(1). Even if this was wrong, compliance with Article 6(1) could still be achieved byproviding an appeal to a judicial body capable of providing the requisite guarantees.It was common ground that the applicant’s lawful detention must, in itself, adversely affect theability of any person to participate in home and family life. Convention authorities confirmed that,in the case of prisoners, Article 8 rights may be qualified or restricted (e.g. closed visits) and, ifjustified, these restrictions do not breach Article 8. For example, a prisoner has no right to choosewhere he will serve his sentence and only in exceptional circumstances will the detention of aprisoner a long way from home constitute a violation of Article 8. In this case, the breach of theapplicants Article 8 rights resulting from her transfer to Carstairs has been shown to be necessaryand proportional.There was no evidence to indicate that the Regional Secure Unit project had yet lost any priority. Inthe circumstances, the applicant had not established any breach of her Article 8 rights in relation tothe exercise of the Departments powers under Section 110 of the 1986 Order.
Mental health of the population A higher prevalence of psychological morbidity than England or Scotland (see chart). Compared with England, the mental health needs in Northern Ireland are potentially 21% higher for men and 29% higher for women. The age- adjusted mortality rate is also higher. The Northern Ireland First-Episode Psychosis Study showed that the incidence of psychosis and schizophrenia is slightly higher than that found in recent studies in Ireland and Nottingham. Suicide is the fourth largest contributor to potential years of life lost in Northern Ireland. Approximately 120 suicides are recorded annually. An increasing prevalence of people with a learning disability. Economic indicators: The proportions of people on attendance allowance and disability living allowance in Northern Ireland are more than twice as high as in GB Britain. Cannabis is the main illegal drug, with 17% of the adult population 15-64 reporting ever having used it. This compares with 29% for England and Wales.
Organisation of Mental Health Services Health and social services are integrated in Northern Ireland. Health and social care services are delivered by Health and Social Services Boards (HSS Boards) and Health and Social Services Trusts (HSS Trusts). There are 4 HSS Boards — Eastern, Northern, Southern and Western — which plan and commission services for the people who live in their areas. The 19 HSS Trusts provide health and social services.
In-patient data Adult mental illness Mental handicap A v g. A v g. A v g . l e n g th A v g . l e n g th 2004/2005 available 2004/2005 available o f st a y o f st a y b e ds b e dsN o r t h er n N o r t h er n 1080.9 43.7 days 558.6 80.0 daysIreland IrelandHolywell 151.1 60.9 days Muckamore 318.0 825.8 days AbbeyKnockbracken 140.2 114.2 days Longstone 140.4 152.1 daysTyrone & 126.2 35.2 days Stradreagh 68.0 58.8 daysFermanaghSt Luke’s 124.7 63.0 daysDownshire 105.8 73.1 days
Mental handicap in-patient data900800 Lo n g sto n e700 Oa k la n d s600 Cau se way500 Str ad r e ag h400 F o r e st Lo d g e300 M u ckamo r e Ab b e y200 No r th e r n Ir e lan d100 0 A v g No. A v er age Length Oc c upied Beds of Stay ( Day s )
U K b e d co m p a r i so n s Average daily available hospital beds per 10,000 resident population G e n er a l & a c u t e M e n t al i l l n e s s Learning Disability To t a l b e dsU n i t e d K i n g d om 28 7 1 39S c o t l an d 34 13 1 57W ale s 32 8 1 48N o r t h e r n I r e l an d 26 7 3 49E n g l an d 27 1 2 36 Source: National Statistics, UK Health Statistics, 2006 edition
UK bed comparisons (2) Number of people aged 16–64 per available hospital bed N o . p e r a du l t No. per learning m e n t al i l l n e s s b e d disability bedN . I r e l a nd 1003 1941E n g l an d 1018 65 8 5 8000 7000 England 6000S c o t l an d 1097 5102 5000 Wales 4000 Scotland 3000W ale s 1753 7176 2000 Nor ther n 1000 Ir elandSource: Eldergill, Analysis of UK population and health 0statistics databases Pe r Pe r M .I. L.D. bed bed
Community provision OUT-PATIENT SUPPORT 11,459 people were seen as out-patients following a referral to adult mental illness services in 2004/2005. In addition, the following attended as out-patients following a referral: mental handicap services, 340 people; children and adolescent services, 893 people; psychotherapy services, 708 people; older age psychiatry, 2,461 people. SOCIAL SERVICES Around 13,200 people with a mental illness and 9,900 people with a learning disability were in contact with Social Services in 2001–02. These contacts resulted in just over 450 case management assessments. RESIDENTIAL HOMES In 2002 there were almost 7,000 places in residential homes in NI, representing 5.4 places per 1,000 adult population, compared with 8.9 in England (2001), 8.0 in Wales (2001) and 5.6 in Scotland. NURSING HOMES In 2002 the number of places (over 9,000) in nursing homes in NI was 7.4 per 1,000 adult population, compared with 4.9 in England (2001), 4.8 in Wales (2001) and 6.4 in Scotland. The self-funding of nursing home places is approximately 15% in Northern Ireland, compared to 31% in England and 20% in Wales.
Expenditure on services Expenditure on health a n d p e r s on a l s o c i a l services per head £2,500S c o t l an d £ 2 0 46 £2,000 £1,500 ScotlandN . I r e l a nd £ 1 8 99 N. Ireland £1,000 WalesW ale s £1834 £500 England £0 £ perE n g l an d £ 1 69 1 headSource: National Statistics, UK HealthStatistics, 2006 ed.
2 — The LegislationThe Mental Health (Northern Ireland)Order 1986
Existing Legislation HISTORY Mr Justice MacDermott was appointed to chair a review of Northern Irish mental health legislation, and his report was published in October 1981. LEGISLATION The Mental Health (Northern Ireland) Order 1986 Mental Health Review Tribunal Rules 1986 Mental Health Regulations 1986
Other Guidance DEPARTMENTAL GUIDANCE The Guide to the 1986 Order (=Memorandum) Departmental Code of Practice C A SE L A W Northern Irish case law English and Welsh case law LEGAL TEXTBOOKS Brice Dickson, The Legal System of Northern Ireland
Structure of the 1986 Order Very similar to the 1983 Act Part II = applications (civil compulsion) Part III = criminal courts, prison transfers Part IV = Consent to treatment Part V = Mental Health Review Tribunal There is a Mental Health Commission for Northern Ireland There is an Office of Care & Protection, equivalent to the Court of Protection.
‘Mental disorder’ DEFINITION OF ‘MENTAL DISORDER’ “mental disorder” means mental illness, mental handicap and any other disorder or disability of mind; EXCLUSIONS No person shall be treated under this Order as suffering from mental disorder, or from any form of mental disorder, by reason only of personality disorder, promiscuity or other immoral conduct, sexual deviancy or dependence on alcohol or drugs.
Forms of ‘mental disorder’ For m Definition Relevance“mental illness" means a state of mind which affects a persons thinking, perceiving, emotion or judgment to the extent that he Detention for requires care or medical treatment in his own interests treatment requires a or the interests of other persons classification of“severe mental means a state of arrested or incomplete development mental illness orimpairment” of mind which includes severe impairment of severe mental intelligence and social functioning and is associated impairment. with abnormally aggressive or seriously irresponsible conduct on the part of the person concerned.“mental handicap” means a state of arrested or incomplete development Mental handicap is a of mind which includes significant impairment of component of intelligence and social functioning. mental disorder.“severe mental means a state of arrested or incomplete development Guardianship requireshandicap” of mind which includes severe impairment of a classification of intelligence and social functioning; mental illness or severe mental handicap.
Applications for assessmentSINGLE MEDICAL RECOMMENDATION Given by a doctor who has If practicable, by the patient’s medical personally examined the patient practitioner or by one who has previous not more than two days before. acquaintance with the patient Must have seen the patient APPLICATION FOR ASSESSMENT not more than two days By ASW or Nearest Relative before the date of the application. Or such longer period of up to 14 ADMISSION days as a Part II doctor appointed Application is authority to take, convey and admit within by the Commission may certifytwo days beginning with the date the recommendation was signed. to be necessary in exceptional circumstances.
Application Grounds4.—(2) An application forassessment may be made in respectof a patient on the grounds that—(a) he is suffering from mentaldisorder of a nature or degreewhich warrants his detention in ahospital for assessment (or forassessment followed by medicaltreatment); and England & Wales(b) failure to so detain him would (b) He ought to be detainedcreate a substantial likelihood of in the interests of his ownserious physical harm to himself or health or safety or with ato other persons. view to the protection of other persons.
‘A substantial likelihood of serious physical harm’2.—(4) In determining for the purposes of this Order whether the failure to detaina patient or the discharge of a patient would create a substantial likelihood ofserious physical harm—(a) to himself, regard shall be had only to evidence—(i) that the patient has inflicted, or threatened or attempted to inflict, seriousphysical harm on himself; or(ii) that the patients judgment is so affected that he is, or would soon be, unableto protect himself against serious physical harm and that reasonable provision forhis protection is not available in the community;(b) to other persons, regard shall be had only to evidence—(i) that the patient has behaved violently towards other persons; or(ii) that the patient has so behaved himself that other persons were placed inreasonable fear of serious physical harm to themselves.
Nearest relative’s position2003/04 Number PercentASW applications 1,166 78%Nearest Relative applications 329 22% Source: Mental Health Commission for Northern IrelandWho is the Preference is given to a relative who is ‘caring for the patient’. Mere residencenearest relative gives a relative no priority.Powers The nearest relative’s position is weaker. Their objection to the making of an application can be overridden by an ASW without any need to go to court. If she tries to discharge the patient, this can be blocked on the grounds that the patient meets the criteria for detention or that the RMO is not satisfied that the patient, if discharged, would receive proper care.Conveyance of A duly completed application for assessment is sufficient authority for thepatients applicant, a person authorised by them, or the responsible authority if the applicant so requests in a case of difficulty, to take the patient and convey him to the hospital specified (Article 8). Where the responsible authority fails to convey a patient in such a case, a justice of the peace may issue a warrant authorising any constable, accompanied by a medical practitioner, to enter the premises and to take and convey the patient to the hospital specified (Article 129).
Following admission SECOND MEDICAL EXAMINATION The patient must be ‘examined immediately after he is admitted’ by ANY OTHER DOCTOR ON THE RMO OR A PART II DOCTOR STAFF OF THE HOSPITAL REPORT FURNISHED REPORT FURNISHED Authorises detention for 7 days Date of admission Authorises detention for 48 hrs from the date of admission from the date of admission FURTHER EXAMINATION FURTHER EXAMINATION By the RMO, within this 7 day period By the RMO, within this 48 hour period REPORT FURNISHED Authorises detention for a second7 day period from the date of admission
Detention for treatment (Article 12) MEDICAL EXAMINATION By a Part II medical practitioner, during the second 7 day period REPORT FURNISHED — IN THE DOCTOR’S OPINION … (a) The patient is suffering from mental illness or severe mental impairment of a nature or degree which warrants his detention in hospital for medical treatment; (b) Failure to so detain the patient would create a substantial likelihood of serious physical harm to [the patient] or to other persons. PATIENT DETAINED FOR TREATMENT For a period not exceeding 6 months beginning with the date of admission
Renewing detention for treatment Period By whom ProcedureFirst renewal. For second 6 Examination during final month of the first six RMOmonth period. month period. Examination during final two months of the Two medical second six month period. One of the doctors mustSecond renewal. For a practitioners. not be on the staff of the hospital and not havefurther year. Both Part II given a recommendation or report under Articles doctors. 4, 9 or 12(1). Joint renewal report. 14 days notice of the examination to patient and nearest relative.Third and subsequent Examination during final two months of therenewals. For a further year RMO period.at a time. The renewal criteria are the same as the criteria for the initial detention for treatment. See Art. 13.
Discharge Who may make an order in writing Mandatory where satisfied that the patient does notResponsible medical meet the criteria for detention for treatment. (The drafting is imprecise.) RMO requires the consent of theofficer responsible authority if the patient is detained in special accommodation.Responsible authority Must give 72 hours notice. May be barred if RMO certifies that patient meets the criteria for detentionNearest relative for treatment (sic) or if the RMO is not satisfied that the patient, if discharged, would receive proper care.
Number of compulsory admissions Compulsory admissions under the 1986 Order, 2004/2005There were 1,105 compulsory admissions in all (557 male, 548 female). This constitutesone admission per 1,195 people aged 16 or over. In England & Wales, the figure for2003/04 was one admission per 1,533 people aged 16 or over. 180 H olyw ell S t L u ke s 160 K nockbracken 140 Tyrone & Fermanagh D ow nshire 120 C raigavon PN U 100 Gransha Mater Infirmorum 80 Windsor H ouse 60 C au sew ay Lagan Valley PN U 40 Ards 20 Forster Green 0 Whiteabbey PN U N o . b ed s N o. comp. Young Peoples C entre admissions Shaftesbury Square
Short-term provisions Power 1983 Act 1986 OrderDetention of informal in- Section 5(2). Articles 7(2), 7A(2). Any medical practitioner onpatients by medical practitioner the staff of the hospital. 48 hours.Detention of informal in- Section 5(4). Article 7(3). Appears to the nurse that anpatients by prescribed nurse application ought to be made (c.f. immediately restrained from leaving). 6 hours.Emergency applications for Section 4. Unnecessary because application always foundedassessment initially on a single medical recommendation.Warrant to enter private Section 135 Article 129(1). 48 hours only. Constablepremises — ill-treatment, etc. (1). accompanied by a medical practitioner onlyWarrant to enter private Section Article 129(2). 48 hours only. Constable mustpremises — taking/retaking 135(2) (c.f. may) be accompanied by a medicalpatients into custody practitioner. No reference to an ASW or to a person authorised to take/retake the patient.Police constable’s power — Section 136. Article 130. 48 hours. See Art. 130(3). Constableplace to which public have access under a duty to inform some responsible person residing with the individual and the nearest relative of the removal.
Guardianship SAME AS 1983 ACT Age limit. Powers of a guardian. The guardianship periods (6 months, 6 months, 1 year at a time). A ASW or nearest relative applicant. Where a private guardian is proposed, their consent is required. A Guardianship must be accepted by the local or responsible authority. Applicant must have seen the patient during the A previous 14 days. Nearest relative must be consulted by an ASW applicant (unless not reasonably practicable, etc). Powers of a guardian One of the medical recommendations must be given by a section 12/Part II approved doctor.
Guardianship — differences Mental illness or severe mental handicap Application must be forwarded within 7 only. days (c.f. 14 days) beginning with the date Application + two medical of the last medical examination. recommendations (certifying the medical Different renewal procedure: requires criteria) and an ASW recommendation examination by RMO or another doctor (certifying the welfare criterion). (re medical criteria) + ASW report (re Each doctor must have examined the patient welfare criterion). not more than 2 days before signing the Discharge: order in writing by the RMO, medical recommendation. Not more than 7 nearest relative or an authorised social days must elapse between the separate worker. RMO must discharge if satisfied medical examinations. medical criteria no longer exist, ASW Combined health and social services boards. must discharge if satisfied welfare criterion is no longer met. Nearest relative must Nearest relative’s objection to the give 72 hours notice, and patient’s application can be overridden by an ASW discharge is barred if RMO and ASW applicant. S/he is simply required to consult report that the guardianship criteria are another ASW before applying. satisfied. “Section 132” applies to guardianship cases.
Guardianship statistics One mental illnessDuring the year ending 31 March application per 102,353 people2004: aged 16 or over.• 29 guardianship applications or 9.77 mental illness orders were made in Northern applications per Ireland (17/59% mental illness, million people 12/41% severe mental handicap). aged 16 or over. One mental illness• 461 guardianship applications or application per orders were made in England 77,667 people aged (393/85% mental illness, 49/11% 16 or over mental impairment, 15/3% severe 12.88 mental mental impairment, 4/1% illness applications psychopathic disorder). per million people aged 16 or over.
Connor, Re An Application for Judicial Review  NICA 45, CAFACTSThe appellant was diagnosed as suffering from cognitive impairment as a result of long-term alcoholabuse. On 12 December 2000, she was detained under the 1986 Order and transferred to HolywellHospital. In November 2001, she was transferred to Chisholm House as a detained patient. In May2002 she became the subject of a guardianship order. On 22 November 2002, she married MrKenneth Connor.Mrs Connor wished to live with her husband. On 12 December 2002, the guardianship order wasrenewed, and thereafter Mrs Connor was permitted to have one overnight visit per week with herhusband.Mrs Connor began judicial review proceeding against the trusts decision to require her to reside atChisholm House, on the basis that this decision constituted breach of her rights under article 8 andarticle 12 of the European Convention.SUBMISSIONSThe trust accepted that its decision to require Mrs Connor to live in Chisholm House constituted aninterference with her article 8 rights. It submitted that this decision was taken in accordance with lawand was both necessary to safeguard her and proportionate in its pursuit of that aim.Counsel for the appellant submitted that the various reports and assessments written by the socialworkers and others, and relied on by the respondent, do not demonstrate that the trust consideredthe applicant’s situation against the background of her right to marry and found a family or her rightto a private and family life. There was no analysis of the applicants situation ‘through the prism ofthe European Convention’ nor was there any analysis of the alternatives that might be open to thetrust.
Re Connor, continuedHELD (KERR LCJ)It was well settled that in order to satisfy the requirement of proportionality three criteria must besatisfied:—(i) The legislative objective must be sufficiently important to justify limiting a fundamental right;(ii) The measures designed to meet the legislative objective must be rationally connected to thatobjective – they must not be arbitrary, unfair or based on irrational considerations;(iii) The means used to impair the right or freedom must be no more than is necessary toaccomplish the legitimate objective – the more severe the detrimental effects of a measure, the moreimportant the objective must be if the measure is to be justified in a democratic society.It was for the state to justify the interference. There was no evidence that the trust ever recognised,much less addressed, the interference with the appellants article 8 rights. In none of the documentsgenerated by the trusts consideration of her case could any reference to article 8 be found.The consideration of whether an interference with a convention right could be justified involvedquite a different approach from an assessment at large of what is best for the person affected. Thetrust’s consideration of Mrs Connors case clearly partook of the latter of these.It was impossible to say that if the trust had recognised its obligation not to interfere more than wasnecessary with Mrs Connors convention right, it would in any case have been bound to have cometo the conclusion that it did.
Consent to treatment On paper, the consent to treatment provisions in Part IV of the 1986 Order are virtually identical to those in Part IV of the 1983 Act. However, in practice the consent provisions in Northern Ireland are significantly weaker.
Medication > 3 months & ECT ECT MEDICATION RMO or a Part IV doctor has RMO or a Part IV doctor has certified that patient is capable of certified that patient is capable of consenting and does consent; OR consenting and does consent; OR A Part IV doctor (who is not the A Part IV or a Part II doctor (who RMO) has certified that the is not the RMO) has certified that patient does not consent or is the patient does not consent or is incapable of consenting but the incapable of consenting but the treatment should be given and, treatment should be givenand, before giving this certificate s/he before giving this certificate s/he consult such person or persons as consult such person or persons as appeared to her/him to be appeared to her/him to be principally concerned with the principally concerned with the patient’s medical treatment. patient’s medical treatment.
Mental Health Commission H I S TO R Y The MacDermott Report recommended the creation of a Commission to safeguard the rights of people with a mental disorder: ‘We are convinced that an element of outside interest and supervision would be of benefit, not all to the patients but to all those who provide services for those patients’ (MacDermott, Para. 1– 19 ). The MacDermott Report considered it important to have all the patients safeguards placed under one umbrella, ’achieving the important result that patients, their relatives or those representing their interest (including staff) will have direct access to one body which can deal with any grievance or difficulty which may arise.’ (MacDermott, Para. 3- 2 5 ).
Commission’s FunctionsVisiting and As often as the Commission thinks appropriate, to visit and interview in privateinterviewing patients who are liable to be detained in hospital under the Order.Making To make inquiry into any case where it appears to the Commission that there may beInquiries ill-treatment, deficiency in care or treatment, or improper detention in hospital or reception into guardianship of any patient, or where the property of any patient may, by reason of his mental disorder, be exposed to loss or damage;Duties after To bring to the attention of the Department, the Secretary of State, Board, HSS trustmaking or a person carrying on a private hospital, residential care home, voluntary home orinquiries nursing home the facts of any case in which in the opinion of the Commission it is desirable for that body or person to exercise any of their functions to secure the welfare of any patient by— (a) preventing his ill-treatment; (b) remedying any deficiency in his care or treatment; (c) terminating his improper detention in hospital or reception into guardianship; or (d) preventing or redressing loss or damage to his p r o p e r t y. To bring to the attention of the Department, the Secretary of State, Board, HSS trust, or any other body or person any matter concerning the welfare of patients which the Commission considers ought to be brought to their attention.Advisory To advise the Department, the Secretary of State, Board, HSS trust, or any bodyfunction established under a statutory provision on any matter arising out of the Order which has been referred to the Commission by that body or person.
Strengths and weaknesses STRENGTHS WEAKNESSES Wide-ranging functions and Lack of general power to powers in relation to inspect patient’s notes and untoward incidents records — psychiatrists cannot The Commission receives and be properly scrutinised scrutinises all statutory Limited budget documents Limited legal input — only Its remit extends to informal one legal member patients and persons subject Lack of service user input to guardianship Collegiate, democratic, multi- Collegiate, democratic, disciplinary structure multi-disciplinary structure Demography — everyone in the province’s services knows each other
Mental Health Review Tribunal APPLICATIONS R E F E R E NC E S One application during the six month Mandatory where authority for period beginning with the date of detention or guardianship is admission or reception into guardianship. renewed AND two years has elapsed After the first 6 months, one application since her/his case was considered by during each period of detention or a tribunal. guardianship. The Secretary of State is subject to an identical duty in restricted cases. Restricted patients have the same rights of application. Discretionary References Nearest relatives The department (Secretary of State Nearest relative of a Part II patient: within in restricted cases) 28 days of the issue of a barring order Mental Health Commission (including in guardianship cases). Attorney General (not in restricted Displaced nearest relatives and the nearest cases) relatives of Part III patients: one Master (Care and Protection), if application during every 12 month period. directed by the High Court, but not in restricted cases.
The Review Tribunal’s Powers NON-RESTRICTED CASES RESTRICTION ORDERS Discretionary discharge in all Absolute discharge, conditional cases. discharge and deferred Discharge mandatory unless conditional discharge, exactly as satisfied that patient satisfies the under the 1983 Act. criteria for detention. Non-guardianship cases only Discharge may be immediate or SAME AS 19 8 3 AC T on a specified future date. BUT NO SUPERVISED Recommendations if patient is DISCHARGE IN N.I. & not discharged: leave of absence, NO RECLASSIFICATION PO W E R transfer to another hospital, transfer into guardianship.
Other distinctive provisionsRehabilitation provisions Article 10 contains important rehabilitation provisions. A person who is admitted for assessment, and is not then detained for treatment, does not have to disclose that fact to any third parties, otherwise than in judicial proceedings.Criminal provisions Where a court makes an order under Part III, it is the duty of the Department to give effect to the order by designating a hospital to which the defendant can be admitted. A magistrates’ court can impose a restriction order.After-care (s.117) There is not equivalent provision. However, a Board or HSS trust may provide financial assistance for any person who has been granted leave of absence where such assistance is necessary to give full effect to their treatment or to provide for their settlement or resettlement in the community. Such a body may also provide, or co-operate in the provision of, suitable training or occupation, and contribute towards the maintenance of persons who are subject to guardianship. (Article 113)
Other distinctive provisionsPatients’ money Where it appears to a Board or HSS trust that any patient in any hospital or inand valuables any accommodation managed by it is incapable, by reason of mental disorder, of managing and administering his property and affairs, it may receive and hold money and valuables on her/his behalf. It may expend that money or dispose of those valuables for the benefit of that person and shall have regard to the sentimental value that any article may have for the patient, or would have but for their mental disorder (Article 116).Children Each Board and HSS trust must maintain a register of all persons under the age of 18 years who are for the time being receiving medical treatment for mental disorder as in-patients in hospitals they manage, and at intervals of three months, forward to the Commission a copy of the register as for the time being in force (Article 118)Unlawful Any person who knowingly receives and detains otherwise than in accordancedetention with the Order a person suffering from mental disorder shall be guilty of an offence. Similarly, any person who exercises in relation to any patient any power of detention, or any other power conferred on him by or under the Order, after he has knowledge that the power has expired, shall be guilty of an offence. (Article 120).
3 — Future developments— The reorganisation of services— The Review of Mental Health &Learning Disability
Reorganisation of services A Review of Public Administration ended on 30 September 2005. On 22 November 2005, the Minister for Health & Social Services announced that boards and trusts would be reformed. The operational date of the new trusts will be 1 April 2007. The number of trusts providing health and personal social services will be reduced from 18 to 5. The rationale for the new configuration is ‘based on an analysis of acute hospital catchments’. The Northern Ireland Ambulance Service Trust will continue to provide a regional ambulance service. The four Health and Social Services Boards will be abolished and replaced by a new Strategic Health and Social Services Authority. This authority will be responsible for commissioning and for performance management.
Review of Mental Health & Learning Disability In October 2002, the Department of Health, Social Services and Public Safety (DHSSPS) set up a major, wide-ranging and independent review of the law, policy and provision affecting people with mental health needs or a learning disability in Northern Ireland. The review is being overseen by a Steering Committee of representatives from professional and other interested groups in the mental health and learning disability fields. It was chaired by the late Professor David Bamford of the University of Ulster, who has been succeeded by Professor Roy McClelland of Queen’s University, Belfast.
A capacity model A capacity model, rather than a risk model — is this desirable and is it practical? Closer to the Scottish legislation, than the 1983 Act or the 2004 Bill. A ‘framework document.’ Likely therefore to be similar to the Richardson Report in approach — Principles and concepts rather than detailed drafting and analysis. Will it encounter the same problems of consistency and cost when the essential detail is added in?
Concluding remarks The good: many innovative legal provisions. The bad: relatively weak legal input, relatively weak family rights, no social work control over long-term detention. The medical profession operates relatively free of independent scrutiny and checks and balances.