Mental Capacity Act Background

The Mental Capacity Act (NI) 2016 (“the Act”) is a ground-breaking piece of legislation that, when fully commenced, will fuse together mental capacity and mental health law for those aged 16 years old and over within a single piece of legislation, as recommended by the Bamford Review of Mental Health and Learning Disability.

The Act provides a statutory framework for people who lack capacity to make a decision for themselves and for those who now have capacity but wish to make preparations for a time in the future when they lack capacity. When the Act is fully commenced the Mental Health (Northern Ireland) Order 1986 (“the 1986 Order”) will be repealed for anyone over the age of 16.

Implementation - Phase 1

There has been an emerging issue with regards to deprivations of liberty (DoL) for some time. The requirements for depriving someone of their liberty have been clearly set out by the UK Supreme Court in recent years, and the result is that the only lawful means of depriving someone of their liberty at present in Northern Ireland, outside of criminal justice and children’s legislation, is by use of the 1986 Order for mental health patients in hospital or by a declaratory order obtained from the High Court for any other patients or patients not in hospital.

In order to address this issue and to provide a new statutory framework in relation to deprivation of liberty the Department of Health, along with the Department of Justice, are jointly partially commencing the Mental Capacity Act (Northern Ireland) 2016 for the purpose of deprivation of liberty. The new legislation came into operation on 2 December 2019.

To manage the commencement of the Act, the 1986 Order will initially be kept for all and a dual system will exist with both the 1986 Order and the Act providing statutory frameworks for DoL.

The legal framework provided by the Act will be supported by Codes of Practice which provide practical information for how the Act works. The Codes are available in the 'Code of Practice' section. They will support Phase 1 of the implementation and commencement of the Act only.  The Regulations associated with the Act will also provide statutory forms for use by professionals. The forms are available in the 'Forms' section.

If you have any queries they should be directed to the following contact details:

Room D2.10,
Castle Buildings,
Stormont Estate,
Belfast, BT4 3SQ


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