Coronavirus Act 2020

Section 10

SCHEDULE 11 Mental capacity: Northern Ireland

PART 1 Introductory provision etc

Interpretation

1 (1) In this Schedule, “the 2016 Act” means the Mental Capacity Act (Northern Ireland) 2016 (c. 18 (N.I.)).

(2) In this Schedule—

(a) references to sections are to sections of the 2016 Act;

(b) references to Schedules are to Schedules to that Act.

(3) Expressions used in this Schedule and in the 2016 Act have the meaning given in that Act.

Prescribed forms

2 Where any form prescribed for use in connection with a provision of the 2016 Act is inconsistent with a modification made by Part 2 of this Schedule, the form—

(a) may, in connection with the provision as so modified, be used with appropriate amendments,

(b) is otherwise, for use in that connection, to be read with such amendments as are necessary to reflect the modification.

PART 2 Modifications of the Mental Capacity Act (Northern Ireland) 2016

Proceedings of panels constituted to decide applications

3 Section 297(2) (panels to have 3 members, all present) has effect as if for “(all of whom must be present during any proceedings of the panel)” there were substituted “, all of whom must be present during any proceedings of the panel, except where—

(a) the panel does not hear oral evidence,

(b) each of the members provides a written opinion, and

(c) the decision of the panel is unanimous.”

Time limit for panel’s decisions regarding authorisations of certain serious interventions

4 Paragraph 19(2) of Schedule 1 (time limit for panel’s decision) has effect as if for “7 working days” there were substituted “28 working days”.

Interim authorisations by panels of certain serious interventions

5 Paragraph 20 of Schedule 1 (interim authorisations by panels) has effect as if in each of sub-paragraphs (2)(b), (3)(b) and (5)(a) for “28 days” there were substituted “56 days”.

Report authorising short-term detention in hospital for examination etc

6 Paragraph 4(2) of Schedule 2 (medical practitioner making medical report for inclusion in report under paragraph 2 to have examined P not more than 2 days before date on which medical report is made) has effect in relation to the making of a medical report during a period for which this paragraph has effect as if for “two days” there were substituted “five days”.

7 Paragraph 5 of Schedule 2 (person making report under paragraph 2 to have personally seen P not more than 2 days before date on which report is made) has effect in relation to the making of a report during a period for which this paragraph has effect as if for “two days” there were substituted “five days”.

Consultation required before such a report is made

8 (1) Paragraph 6(1) of Schedule 2 (circumstances in which a person may make a report under paragraph 2 of Schedule 2 only if the person has consulted an approved social worker) has effect as if for “only if the person has consulted an approved social worker.” there were substituted “only if—

(a) the person has consulted an approved social worker, or

(b) the person considers that it is impractical or would involve undesirable delay to consult an approved social worker, the person has consulted a relevant social worker.”

(2) A person who in relation to the person’s proposal to make a report under paragraph 2 of Schedule 2—

(a) is of the opinion referred to in paragraph 6(1)(b) of Schedule 2 (as inserted by sub-paragraph (1)), and

(b) is proposing to consult a relevant social worker in reliance on that paragraph,

must inform P, and where practicable P’s nominated person, of those facts.

(3) A report by a person under paragraph 2 of Schedule 2 who has consulted in reliance on paragraph 6(1)(b) of that Schedule (as inserted by sub-paragraph (1)) must be accompanied by a written statement complying with sub-paragraphs (4) and (5).

(4) The statement must specify—

(a) that the person was of the opinion referred to in paragraph 6(1)(b) of Schedule 2 (as inserted by sub-paragraph (1)) and accordingly consulted a relevant social worker;

(b) that the person has informed P as referred to in sub-paragraph (2);

(c) whether the person has informed P’s nominated person as referred to in sub-paragraph (2), and if not, the reasons why it was not practicable to do so.

(5) The statement must contain a summary of the views (if any) expressed by P and P’s nominated person.

(6) In this paragraph a “relevant social worker” means a person (other than an approved social worker), who—

(a) is registered as a social worker in the principal part of the register maintained by the Northern Ireland Social Care Council under section 3 of the Health and Personal Social Services Act (Northern Ireland) 2001, and

(b) appears to the person proposing to make the report to have at least 5 years’ experience within the 10 years immediately preceding the day on which the report is proposed to be made of working as a social worker in relation to persons who lack capacity; and for this purpose the period of 5 years need not be a single period, or continuous periods, of such experience.

Extension by panel of period of authorisation

9 Paragraph 9(2) of Schedule 3 (time limit for panel’s decision on application for extension of period of authorisation) has effect as if for “7 working days” there were substituted “28 working days”.

Additional notification requirements for panels

10 Where a panel, during a period for which paragraph 3, 4, 5 or 9 has effect, operates in reliance on that paragraph, the panel must as soon as practicable after making the decision concerned give written notice of that fact to P and P’s nominated person.

Period of detention in place of safety

11 Section 146(1) (maximum period of detention of person removed from public place to place of safety under section 139) has effect in relation to a person detained after the beginning of any period for which this paragraph has effect as if for “24 hours” there were substituted “36 hours”.

Periods of remand to hospital

12 Section 162(5) (periods of remand or further remand of accused to hospital for report on mental condition or treatment) has effect as if the words “or for more than 12 weeks in total” were omitted.

Required medical evidence for court to be satisfied treatment condition is met in relation to remand to hospital

13 (1) A court considering whether to remand an accused person to hospital under section 162(1) may regard the treatment condition as met where the court—

(a) is satisfied that complying with the requirement under section 165(3) for the evidence of at least two registered medical practitioners in accordance with that provision is impractical or would involve undesirable delay, and

(b) is satisfied on the written or oral evidence of a single relevant medical practitioner of the matters of which it would (but for this paragraph) have to be satisfied on the evidence of at least two practitioners as referred to in sub-paragraph (a),

and any other requirements for the treatment condition to be met are satisfied.

(2) In sub-paragraph (1)(b), “relevant medical practitioner” means a medical practitioner referred to in paragraph (a) or (b) (as the case may be) of section 165(3).

Required medical evidence for public protection orders, interim detention orders, determinations of question of fitness to be tried or findings of not guilty on ground of insanity

14 (1) A court may make an order, determination or direction under a provision listed in sub-paragraph (2) if the court—

(a) is satisfied that complying with the requirement under that provision for the written or oral evidence of at least two medical practitioners, including the oral evidence of an approved medical practitioner, is impractical or would involve unreasonable delay, and

(b) is satisfied on the written or oral evidence of a single approved medical practitioner of the matters of which it would (but for this paragraph) have to be satisfied on the evidence of at least two practitioners as referred to in sub-paragraph (a),

and any other conditions for the making of the order, determination or direction are met.

(2) Those provisions are—

(a) section 167(2) (public protection order requiring convicted person to be admitted to and detained in hospital or care home specified in order) (see also section 168(5));

(b) section 177(2) (interim detention order requiring convicted person to be admitted to and detained in hospital specified in order) (see also section 177(5));

(c) section 204 (determination of question of fitness of person to be tried on indictment);

(d) section 206 (direction for recording of finding that person is not guilty of offence charged on indictment on ground of insanity).

Required medical evidence for hospital directions

15 (1) A court may give a hospital direction under section 174 (when passing custodial sentence, for the removal to and detention in hospital of a convicted person) where the court—

(a) is satisfied that complying with the requirement under that provision for the evidence of at least two registered medical practitioners in accordance with that provision is impractical or would involve undesirable delay, and

(b) is satisfied on the written or oral evidence of a single relevant medical practitioner of the matters of which it would (but for this paragraph) have to be satisfied on the evidence of at least two practitioners as referred to in sub-paragraph (a),

and any other conditions for giving the direction are met.

(2) In sub-paragraph (1), “relevant medical practitioner” means a medical practitioner referred to in paragraph (a) or (b) (as the case may be) of section 175(4).

Extension reports in relation to public protection orders without restrictions

16 Section 183 (period within which appropriate medical practitioner making extension report in relation to public protection order without restrictions must have examined person subject to order) has effect as if in subsection (3)—

(a) in paragraph (a) of the definition of “the reporting period” (first extension under section 181), for “last month” there were substituted “last two months”, and

(b) in paragraph (b) of that definition (subsequent extension under section 182), for “last two months” there were substituted “last three months”.

Required medical evidence for directions for the transfer of prisoners etc to hospital

17 (1) The Department of Justice in Northern Ireland may give a direction under a provision listed in sub-paragraph (3) if the Department—

(a) is satisfied that complying with the requirement under that provision for written reports from at least two medical practitioners in accordance with that provision is impractical or would involve undesirable delay, and

(b) is satisfied on the basis of a written report from a single relevant medical practitioner of the matters of which it would (but for this paragraph) have to be satisfied on the written reports of at least two practitioners as referred to in sub-paragraph (a),

and any other conditions for giving the direction are met.

(2) In sub-paragraph (1), “relevant medical practitioner” means a medical practitioner referred to in paragraph (a) or (b) (as the case may be) of section 212(4) or (as the case may be) 223(5).

(3) Those provisions are—

(a) section 211(1) (direction for removal to hospital of person serving custodial sentence etc);

(b) section 214(1) (direction for removal to hospital of civil prisoner or immigration detainee);

(c) section 217(1) (direction for removal to hospital of person remanded in custody by magistrates’ court);

(d) section 220(1) (direction for removal to hospital of certain other detainees).

Admission of person subject to hospital transfer direction to hospital

18 Section 224(2)(b) (period within which person subject to hospital transfer direction must be admitted to hospital) has effect as if for “14 days” there were substituted “28 days”.

Code of practice

19 (1) The Code of Practice for the time being published under section 288 is subject to the provisions of such further Code of Practice (“temporary Code”) as the Department of Health in Northern Ireland may prepare, as appropriate revise, and publish, for the guidance, in relation to a period for which a provision of this Schedule has effect, of such of the persons or bodies referred to in subsection (1) of that section as the Department considers appropriate on such matters as the Department considers appropriate.

(2) Subsections (4) to (6) and (8) to (10) of section 288 apply to a temporary Code as they apply to a Code of Practice referred to in that section.

(3) Section 288 does not otherwise apply to a temporary Code.

PART 3 Transitional provision

20 Paragraph 5, 9, 11 or 18 continues to apply after the end of any period for which it has effect for the purposes of determining the length of any period which has begun before the end of that period.

21 Where, by virtue of paragraph 12 an accused person has been remanded under section 162 for more than 12 weeks in total, the person may not be further remanded under that provision after the end of any period for which that paragraph has effect.

PART 4 Review of operation of certain provisions of this Schedule

22 (1) Each HSC trust must maintain a record of each instance where a panel operates in reliance on paragraph 5 or 9.

(2) The HSC trust must prepare a report containing an evaluation by it of each such instance and its opinion as to whether the reliance on paragraph 5 or 9 was appropriate.

(3) The HSC trust must send the report under sub-paragraph (2) to the Department of Health in Northern Ireland no later than 3 months after the end of a period for which the paragraph of this Schedule in question has effect.