A key focus of the Mental Capacity Act (Northern Ireland) is the Deprivation of Liberty, also known as DoL. While there are some similarities with the MCA for England and Wales, there are some key differences in how the process works in Northern Ireland. In particular, there are two separate Codes of Practice that professionals must adhere to. The process for conducting an assessment is also slightly different.
Codes of Practice
The Mental Capacity Act (Northern Ireland) Codes of Practice translate the formal language of legislation into terms that can be applied in everyday practice. The Codes can be found on the Department for Health webpages, where they detail the purpose, rationale, processes and responsibilities around the Act.
In the case of the MCA (Northern Ireland), it is interesting that there are two separate Codes, rather than just the one. The first of these Codes covers Deprivation of Liberty (DoL); meanwhile a separate document covers monies, valuables and research.
Across both Codes, there is a clear focus on the individual and their rights, promoting safeguarding, autonomy and inclusion for those aged 16 years and above. Each document is clearly laid out and accessible, allowing easy reference for health professionals.
Under the Mental Capacity Act (Northern Ireland), a capacity assessment requires a ‘suitably qualified’ professional to complete. This can include a wide range of health professionals who must have at least 2 years’ experience as well as specific training. This is different to England and Wales, where a mental capacity assessment can technically be conducted by anyone.
Another key difference is that in Northern Ireland there is a further expectation that trained professionals will support the provision of mental capacity assessment(s) for finances and valuables in care homes as a part of everyday practice. This is not limited to a specific profession.
In Northern Ireland, the assessment for mental capacity is as follows:
- Functional test – Is the person unable to:
- Understand the decision
- Retain the information to apply
- Appreciate, use and weigh up the information
- Communicate the decision
- Impairment/disturbance test:
- In your opinion, does the person have an impairment or disturbance of functioning in the mind or brain, which can be short or long term with no requirement of diagnosis.
- Causal link: Is the person unable to make a decision because of an impairment or disturbance in the functioning of the mind or brain?
Other decision-specific mental capacity considerations, such as treatment, care, visitations or otherwise, are not present under the Codes of Practice for the MCA (Northern Ireland), but may be covered by separate legislation.
The Assisted Decision Making (Capacity) Act may fill this breach. However, this act has been long delayed, with full implementation not due until the end of April 2023 (just before the publication of this blog). The Act includes several quite interesting developments such as three levels of decision making. This Act has gained some publicity in recent months, with an opinion piece published on RTE in January 2023.
From my own experience, one of the major challenges working with the Mental Capacity Act in England is the inconsistency of how the Act is applied. This includes the poor quality of some Mental Capacity Assessments completed by professionals. This of course then impacts an individual’s engagement, outcomes and ultimately, their Rights.
It is highly encouraging then to see that Northern Ireland emphasising the need for approved training to help safeguard vulnerable people. I sincerely hope that standardised Mental Capacity training will be considered in other areas of the UK in the future.