The Mental Capacity (Deprivation of Liberty) (No. 2) Regulations (Northern Ireland) 2019

Statutory Rules of Northern Ireland

2019 No. 199

Mental Capacity

The Mental Capacity (Deprivation of Liberty) (No. 2) Regulations (Northern Ireland) 2019

Made

7th November 2019

Coming into operation

2nd December 2019

The Department of Health M1, in exercise of the powers conferred by sections 14(4), 39(2), 39(2)(e), 42(1), 43(5), 57(1)(a), 58(1), 58(3), 61(1), 79(2)(b), 79(4), 297(3), 300(2) and 307(4) paragraphs 5(1)(a), 6(1)(a), 6(1)(e), 7(1), 7(1)(c), 8, 14(1)(a), 19(3)(b) and 20(6) of Schedule 1, paragraphs 1(2), 2(4), 2(4)(d), 3(1)(b), 4(1), 4(1)(c), 7(1), 7(1)(b), 9(2)(b), 9(3) 11(3)(b), 11(4), 13(3)(b), 13(4), 14(4)(b) and 14(5) of Schedule 2 and paragraphs 3(1)(a), 4(1)(a), 4(1)(f), 5(1), 5(1)(c), 6, 7(1)(a) and 9(3)(b) of Schedule 3 to the Mental Capacity Act (Northern Ireland) 2016 M2, makes the following Regulations:

Marginal Citations

PART 1 N.I.Citation, commencement and interpretation

Citation, commencement and interpretationN.I.

1.—(1) These Regulations may be cited as the Mental Capacity (Deprivation of Liberty) (No. 2) Regulations (Northern Ireland) 2019 and shall come into operation on 2nd December 2019.

(2) In these Regulations—

“the Act” means the Mental Capacity Act (Northern Ireland) 2016;

[F1”emergency” period means the period during which section 10(4) of and paragraphs 3, 4, 5, 6, 7, 8, 9 and 10 of Schedule 11 to the Coronavirus Act 2020 are in force;]

“occupational therapist” means a person entitled to use the title and currently registered with the Health and Care Professions Council under the Health and Social Work Professions Order 2001;

“P” means a person who is 16 or over who lacks capacity in relation to the deprivation of liberty;

“panel” means a panel constituted under Schedule 1 or 3 to the Act in accordance with section 297 of the Act;

“practitioner psychologist” means a person entitled to use the title and currently registered with the Health and Care Professions Council under the Health and Social Work Professions Order 2001 M3;

“registered” in relation to nurses and midwives, means registered in the register maintained under Article 5 of the Nursing and Midwifery Order 2001 M4 by virtue of qualifications in nursing or midwifery as the case may be;

“registered dentist” has the same meaning as in the Dentists Act 1984 M5;

“relevant trust” is the HSC trust in which the deprivation of liberty of taking place or is proposed to take place;

“social worker” means a person registered as a social worker with the Northern Ireland Social Care Council in accordance with the Health and Personal Social Services Act (Northern Ireland) 2001 M6;

“speech and language therapist” means a person entitled to use the title and currently registered with the Health and Care Professions Council under the Health and Social Work Professions Order 2001;

“suitably qualified person” means a person who is suitably qualified to make formal assessments of capacity in accordance with section 14(4) of the Act; and

“X” means a person making an appointment, revocation or declaration mentioned in section79(1) of the Act.

Textual Amendments

Marginal Citations

PART 2N.I.Formal Assessment of Capacity and Nominated Person

Suitably qualified person to make formal capacity assessmentsN.I.

2.—(1) [F2Subject to regulation 2A, for] the purposes of section 14(4) of the Act a person is a suitably qualified person to make a formal capacity assessment and provide a statement of incapacity if paragraph (2) and (3) are met.

(2) The person must be one of the following—

(a)a medical practitioner;

(b)a social worker;

(c)a registered nurse or midwife;

(d)a registered dentist;

(e)an occupational therapist;

(f)a speech and language therapist; or

(g)a practitioner psychologist.

(3) The person must—

(a)have successfully completed training that has been approved by the Department;

(b)except in the 36 month period beginning with the date the person has successfully completed the training referred to in sub-paragraph (a), in the 36 months prior to the formal capacity assessment, have completed further training relevant to their role as a suitably qualified person to make a formal capacity assessment;

(c)have two years experience in a professional role, within the previous ten years, working with persons who lack capacity; and

(d)be appointed by his or her employer as a suitably qualified person to make formal capacity assessments.

Textual Amendments

[F32A.—(1) In an emergency period the requirements in regulation 2(3) do not need to be met.N.I.

(2) If a person is acting as a suitably qualified person in reliance on this regulation, he or she must notify P and the nominated person that he or she is so acting.]

Textual Amendments

Witnesses and persons unable to signN.I.

3.  For the purposes of section 79(2)(b) of the Act a person can only be a witness in relation to the formalities under section 79 of the Act if he or she—

(a)is unconnected with X; and

(b)is not X's nominated person.

4.  For the purposes of section 79(4) of the Act if X has capacity to make an appointment, revocation or declaration mentioned in section 79(1) of the Act but is physically unable to make a signature, section 79(2)(a) is replaced by—

“(a)an addition sheet is added to the document containing the appointment, revocation or declaration and the addition sheet must include—

(i)a signature in his or her own name by a person who is unconnected with X;

(ii)a statement by that person that the signature on the addition sheet is on behalf of X and that in his or her opinion X has capacity to make an appointment, revocation or declaration; and

(iii)a signed statement by one witness, in addition to the witness in paragraph (b), who must be unconnected with X stating that in their opinion X—

(aa)understands the effect of the appointment, revocation or declaration; and

(bb)has not been subject to any undue pressure in relation to the appointment, declaration or revocation.”.

PART 3 N.I.Information, Authorisation and Extensions

CHAPTER 1N.I.Information

InformationN.I.

5.—(1) For the purposes of section 57(1)(a) as soon as practicable when P is detained in circumstances amounting to a deprivation of liberty by virtue of the Act the persons in paragraph (2) must be given the information in paragraph (3) by the managing authority where P is deprived of liberty.

(2) The persons that must be notified are—

(a)P;

(b)the nominated person;

(c)any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a)under what provisions of the Act is P detained in circumstances amounting to a deprivation of liberty;

(b)P's rights under the Act; and

(c)information about the Review Tribunal.

6.—(1) For the purposes of section 57(1)(a) as soon as practicable when P is discharged from detention amounting to deprivation of liberty by virtue of the Act the persons in paragraph (2) must be given the information in paragraph (3) by the managing authority where P is deprived of liberty.

(2) The persons that must be notified are—

(a)P; and

(b)any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a)that the person has been discharged from detention under the Act; and

(b)the effect of the discharge.

CHAPTER 2N.I.Trust panel authorisations

Persons who can make an application for Schedule 1 authorisationN.I.

7.  [F4Subject to regulation 7A, for] the purposes of paragraph 5(1)(a) of Schedule 1 to the Act a person can make an application under Schedule 1 to the Act if he or she is—

(a)a suitably qualified person;

(b)involved in the care or treatment of P;

(c)not the person making the medical report required in paragraph 6(1)(b) of Schedule 1 to the Act; and

(d)unconnected with P.

Textual Amendments

[F57A.  In an emergency period the requirements in regulation 7(b) and (c) do not need to be met.]N.I.

Textual Amendments

Form of applicationN.I.

8.  For the purposes of paragraph 6(1)(a) and (e) of Schedule 1 to the Act an application for authorisation under Schedule 1 to the Act must be made on Form 5, include the information in Form 5 and the Forms in regulation 9.

9.  When making an application under Schedule 1 to the Act—

(a)the statement of incapacity must be included and made on Form 1;

(b)a statement of best interests must be included and made on Form 2;

(c)the care plan must be made on Form 4;

(d)the medical report must be made on Form 6; and

(e)the statement in paragraph 6(2) of Schedule 1 to the Act must be made on Form 7.

Medical reportN.I.

10.  For the purposes of paragraph 7(1) and 7(1)(c) of Schedule 1 to the Act the medical report must be made on Form 6 and include the information in Form 6.

Care planN.I.

11.  For the purposes of paragraph 8 of Schedule 1 to the Act the care plan must be made on Form 4 and include the information in Form 4.

InformationN.I.

12.—(1) For the purposes of paragraph 14(1)(a) of Schedule 1 to the Act when an application is received by the relevant trust, it must as soon as practicable notify P and persons in paragraph (2) with the information in paragraph (3).

(2) The persons that must be notified (in addition to P) are—

(a)the nominated person;

(b)any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a)information that an application has been received in respect of P;

(b)the purpose of the application;

(c)information about the HSC Trust where the decision will be taken and how to contact the HSC Trust;

(d)information about the workings of the trust panel; and

(e)information about P's rights under the Act.

13.—(1) For the purposes of paragraph 19(3)(b) and 20(6) of Schedule 1 to the Act as soon as practicable after granting or refusing an authorisation under paragraph 15(1) of Schedule 1 to the Act or granting an interim authorisation under paragraph 20(1) of Schedule 1 to the Act, the panel must notify P and the persons in paragraph (2) with the information in paragraph (3) and (4).

(2) The persons who must be notified (in addition to P) are—

(a)the nominated person; and

(b)any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a)notification of the decision; and

(b)contact details for the HSC Trust in which the trust panel made the decision.

(4) If an authorisation is granted under paragraph 15(1) and 20(1) of Schedule 1 to the Act, the panel must also provide information to P and the persons in paragraph (2) on—

(a)the purpose or purposes of the deprivation of liberty;

(b)the place or places where the deprivation of liberty will take place; and

(c)P's rights in respect of the Review Tribunal.

(5) As soon as practicable after granting or refusing an authorisation or granting an interim authorisation under paragraph 15(1) or 20(1) of Schedule 1 to the Act the panel must notify—

(a)the person who made the application; and

(b)the managing authority where the deprivation of liberty will take place

and furnish such information to those persons to facilitate the deprivation of liberty as authorised or not.

(6) If the application contains a statement mentioned in paragraph 6(2) of Schedule 1 to the Act (statement that P lacks, or probably lacks, capacity in relation to making an application to the Tribunal), the Attorney General must be notified and all information used by the trust panel, and the decision made by the panel, must be sent to the Attorney General.

CHAPTER 3N.I.Short-term detentions in hospital for examination or examination followed by treatment or care

Responsible Medical Practitioner, alternative medical practitioner and medical practitionerN.I.

14.—(1) [F6Subject to regulation 14A, for] the purposes of paragraph 1(2) of Schedule 2 to the Act a medical practitioner can only carry out the functions of the responsible medical practitioner as defined in paragraph (2) if he or she—

(a)is a suitably qualified person; and

(b)has membership of a relevant Royal college and holds a full-time or part-time appointment at a Consultant level, Speciality Doctor level, Associate Specialist level or Post Membership Trainee level.

(2) The functions of a responsible medical practitioner include—

(a)examination and report in accordance with paragraph 11(2) and (4) of Schedule 2 to the Act;

(b)examination and report in accordance with paragraph 13(2) of Schedule 2 to the Act; and

(c)examination and report in accordance with paragraph 14(2) of Schedule 2 to the Act.

Textual Amendments

[F714A.—(1) In an emergency period the requirement in regulation 14(1)(b) does not need to be met.N.I.

(2) If a person is acting as the responsible medical practitioner in reliance on this regulation, he or she must notify P and the nominated person that he or she is so acting.]

Textual Amendments

15.  For the purposes of paragraphs 11(3)(b), 13(3)(b) and 14(4)(b) of Schedule 2 to the Act a medical practitioner who may make a report under paragraphs 11, 13 or 14 in Schedule 2 to the Act as another medical practitioner is a person who meets the criteria for being a responsible medical practitioner in regulation 14 but who is not in charge of P's care.

16.  For the purpose of paragraph 9(2)(b) of Schedule 2 to the Act a person is a medical practitioner who can make an exception certificate if he or she—

(a)meets the requirements of a responsible practitioner in regulation 14;

(b)meets the requirements of an another medical practitioner in regulation 15; or

(c)is the medical practitioner who made the initial medical report under paragraph 4 of Schedule 2 to the Act.

Persons who can make a reportN.I.

17.—(1) [F8Subject to regulation 17A, for] the purposes of paragraph 3(1)(a) of Schedule 2 to the Act a person is an appropriate healthcare professional for the purpose of making a report under paragraph 2 of Schedule 2 to the Act if he or she is—

(a)an approved social worker; or

(b)a person who—

(i)is—

(aa)a medical practitioner;

(bb)a registered nurse or midwife;

(cc)a social worker;

(dd)a registered dentist;

(ee)an occupational therapist;

(ff)a speech and language therapist; or

(gg)a practitioner psychologist;

(ii)has in the last 36 months successfully completed training approved by the Department;

(iii)except in the 36 month period beginning with the date the person has successfully completed the training referred to in head (ii), has, in the 36 months prior to the completion of the short-term detention authorisation, completed further training approved by the Department; and

(iv)has two years experience in the last 10 years in a professional role working with persons who lack capacity

and who is designated by the managing authority of the hospital specified in the report under paragraph 2 of Schedule 2 to the Act as a person who may make reports under that paragraph.

(2) A person cannot be an appropriate healthcare professional under paragraph (1) if he or she is the person who made the statement of incapacity relevant to the short-term detention authorisation.

Textual Amendments

[F917A.—(1) In an emergency period the requirements in regulation 17(1)(b)(iv) and (2) do not need to be met.N.I.

(2) If a person is making a report in reliance on this regulation, he or she must notify P and the nominated person that he or she is so acting.]

Textual Amendments

Form of Schedule 2 reports and certificateN.I.

18.  For the purposes of paragraph 2(4) and 2(4)(d) of Schedule 2 to the Act a short-term detention authorisation for examination or examination followed by treatment or care must be made on Form 8 and include the information in Form 8 and the Forms in regulation 19.

19.  When making a short-term detention authorisation for examination or examination followed by treatment or care under Schedule 2 to the Act—

(a)the statement of incapacity must be included and made on Form 1;

(b)a statement of best interests must be included and made on Form 2;

(c)a medical report must be included and made on Form 6;

(d)the statement in paragraph 2(5) of Schedule 2 to the Act must be made on Form 7; and

(e)the report of the approved social worker must be made on Form 9.

20.  For the purposes of paragraphs 9(3), 11(4), 13(4) and 14(5) of Schedule 2 to the Act—

(a)a certificate for the purposes of paragraph 9(2)(b) of Schedule 2 to the Act must be made on Form 10 and include the information in Form 10;

(b)a report for the purposes of paragraph 11(4) of Schedule 2 to the Act must be made on Form 11;

(c)a report for the purposes of paragraph 13(4) of Schedule 2 to the Act must be made on Form 12; and

(d)a report for the purposes of paragraph 14(5) of Schedule 2 to the Act must be made on Form 13.

Medical reportN.I.

21.  For the purposes of paragraph 4(1) and 4(1)(c) of Schedule 2 to the Act the medical report must be made on Form 6 and include the information in Form 6.

InformationN.I.

22.—(1) For the purposes of paragraph 7(1) and 7(1)(b) of Schedule 2 to the Act when a short-term detention authorisation is made, the person making the short-term detention authorisation must as soon as practicable notify the persons in paragraph (2) with the information in paragraph (3).

(2) The persons that must be notified are—

(a)P;

(b)the nominated person; and

(c)any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a)notification that P is detained in circumstances amounting to a deprivation of liberty;

(b)the hospital where the detention is taking place;

(c)the HSC Trust where the detention is taking place;

(d)the date of the detention decision;

(e)information on short-term detentions;

(f)guidance regarding the Review Tribunal; and

(g)a person's rights under the Act.

(4) As soon as practicable after making the short-term detention authorisation, the person making the report must inform the managing authority of the hospital where P is to be detained and furnish such information as required for the detention to take place.

(5) If the report contains a statement mentioned in paragraph 2(5) of Schedule 2 to the Act (statement that P lacks, or probably lacks, capacity in relation to making an application to the Tribunal), the Attorney General must be notified and the short-term detention authorisation, including all annexes and information referred to, must be sent to the Attorney General.

CHAPTER 4N.I.Extension by report

Extension reportN.I.

23.  For the purposes of section 39(2) and 39(2)(e) an extension report must be made on Form 14 and include the information in Form 14 and the Forms in regulation 24.

24.  When making an extension authorisation—

(a)the statement of incapacity must be included and made on Form 1;

(b)a statement of best interests must be included and made on Form 2;

(c)the care plan must be made on Form 4;

(d)the statement in section 39(3) of the Act must be made on Form 7; and

(e)the responsible person statement must be made on Form 15.

Meaning of responsible personN.I.

25.  For the purposes of section 42(1) of the Act a responsible person means a person who is either an approved social worker subject to the conditions in regulation 26 or another person subject to the conditions in regulation 27.

26.  An approved social worker can be the responsible person if he or she—

(a)is in charge of P's case; and

(b)is involved in the care or treatment of P;

and the deprivation of liberty for which the extension report is sought is relevant to that care or treatment.

27.—(1) In all circumstances another person can be the responsible person if he or she is designated as a responsible person by—

(a)the managing authority of a hospital or care home where P is an in-patient or resident; or

(b)the relevant trust.

(2) A person can only be designated as a responsible person if he or she—

(a)is a suitably qualified person; and

(b)is unconnected with P.

Information when making an extension reportN.I.

28.—(1) For the purposes of section 43(5) of the Act when an extension report is received by the relevant trust, it must as soon as practicable notify P and the persons in paragraph (2) with the information in paragraph (3).

(2) The persons who must be notified (in addition to P) are—

(a)the nominated person; and

(b)any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a)notification of the decision;

(b)contact details for the HSC Trust in which the deprivation of liberty will take place;

(c)the purpose or purposes of the deprivation of liberty;

(d)the place or places where the deprivation of liberty will take place;

(e)P's rights in respect of the Review Tribunal; and

(f)P's rights under the Act.

(4) As soon as reasonably practicable after making the extension report, the person making the report must inform the managing authority where the detention in circumstances amounting to deprivation of liberty will continue and furnish such information as required for the detention to continue.

29.  If the extension report includes a statement under section 39(3) of the Act (a statement that in the opinion of the appropriate medical practitioner P lacks (or probably lacks) the capacity whether an application to the Tribunal should be made in respect of the authorisation), the Attorney General must be notified and the report, including all annexes and information referred to, must be sent to the Attorney General.

CHAPTER 5N.I.Extension by trust panel authorisation

Schedule 3 applicationN.I.

30.  [F10Subject to regulation 30A, for] the purposes of paragraph 3(1)(a) of Schedule 3 to the Act a person can make an application for a trust panel extension of a deprivation of liberty under Schedule 3 to the Act if he or she is—

(a)a suitably qualified person;

(b)involved in the care or treatment of P;

(c)not the person making the medical report required in paragraph 4(1)(c) of Schedule 3 to the Act; and

(d)unconnected with P.

Textual Amendments

[F1130A.  In an emergency period the requirements in regulation 30(b) and (c) do not need to be met.]N.I.

Textual Amendments

Form of applicationN.I.

31.  For the purposes of paragraph 4(1)(a) and (f) of Schedule 3 to the Act an application for authorisation under Schedule 3 to the Act must be made on Form 16, include the information in Form 16 and include the Forms in regulation 32.

32.  When making an application under Schedule 3 to the Act—

(a)the statement of incapacity must be included and made on Form 1;

(b)a statement of best interests must be included and made on Form 2;

(c)the care plan must be made on Form 4;

(d)the medical report must be made on Form 6;

(e)the statement in paragraph 4(2) of Schedule 3 to the Act must be made on Form 7;

(f)the responsible person statement must be made on Form 15.

Medical reportN.I.

33.  For the purposes of paragraph 5(1) and 5(1)(c) of Schedule 3 to the Act the medical report must be made on Form 6 and include the information in Form 6.

Care planN.I.

34.  For the purposes of paragraph 6 of Schedule 3 to the Act the care plan must be made on Form 4 and include the information in Form 4.

InformationN.I.

35.—(1) For the purposes of paragraph 7(1)(a) of Schedule 3 to the Act when an application is received by the relevant trust, it must as soon as practicable notify P and persons in paragraph (2) with the information in paragraph (3).

(2) The persons that must be notified (in addition to P) are—

(a)the nominated person; and

(b)any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a)information that an application has been received in respect of P;

(b)the purpose of the application;

(c)information about the HSC Trust where the decision will be taken and how to contact the HSC Trust;

(d)information about the workings of the panel; and

(e)information about P's rights under the Act.

36.—(1) For the purposes of paragraph 9(3)(b) of Schedule 3 to the Act as soon as practicable after granting or refusing an authorisation under paragraph 8 of Schedule 3 to the Act, the panel must notify P and the persons in paragraph (2) with the information in paragraph (3) and (4).

(2) The persons who must be notified (in addition to P) are—

(a)the nominated person; and

(b)any person P has asked the information to be given to.

(3) The information that must be provided includes—

(a)notification of the decision;

(b)contact details for the HSC Trust in which the trust panel made the decision.

(4) If an authorisation is granted under paragraph 8 of Schedule 3 to the Act, the panel must also provide information to P and the persons in paragraph (2) on—

(a)the purpose or purposes of the deprivation of liberty;

(b)the place or places where the deprivation of liberty will take place; and

(c)P's rights in respect of the Review Tribunal.

(5) As soon as practicable after granting or refusing an authorising an authorisation under paragraph 8 of Schedule 3 to the Act, the panel must notify—

(a)the person who made the application; and

(b)the managing authority where the deprivation of liberty will take place

and furnish such information to those persons to facilitate the deprivation of liberty as authorised or not.

(6) If the application contains a statement mentioned in paragraph 4(2) of Schedule 3 to the Act (statement that P lacks, or probably lacks, capacity in relation to making an application to the Tribunal), the Attorney General must be notified and all information used by the trust panel must be sent to the Attorney General.

CHAPTER 6N.I.Forms, information and descriptions of medical practitioners

FormsN.I.

37.—(1) For the purposes of these Regulations, any application, report, certificate, authorisation or statement, the form of which is required to be prescribed under the Act, or prescribed as required information under these Regulations, shall be in accordance with whichever one of the forms in the Schedule is appropriate.

(2) The forms in the Schedule can be—

(a)in a form or format to the like effect;

(b)presented in a fully digital format; and

(c)amended for accessibility if so required or appropriate.

38.  For the purposes of these Regulations where prescribed information in a Form in the Schedule requires a signature, an electronic signature or a typed name can be provided if the form is in itself provided in a digital form.

Ways in which information must be providedN.I.

39.—(1) In accordance with section 58(1), 58(2) and 58(3) of the Act relevant information means information that must be provided to P about a decision that relates to a deprivation of liberty to P.

(2) The information must be provided in a format that is suitable to P.

(3) Any information that includes notification that P has been detained in circumstances amounting to a deprivation of liberty or discharged from detention must be provided orally as well as in writing to P.

Descriptions of medical practitionersN.I.

40.  For the purposes of section 300(2) of the Act a medical practitioner making a report listed in section 300(1)(a) and (c) to (e) of the Act must—

(a)have successfully completed training that has been approved by the Department;

(b)except in the 36 month period beginning with the date the person has successfully completed the training referred to in sub-paragraph (a), in the 36 months prior to the report, have completed further training relevant to their role as a medical practitioner making a report; and

(c)have two years experience in a medical profession, pre-qualification or post-qualification.

PART 4 N.I.Trust Panels

Panel membershipN.I.

41.—(1) [F12Subject to paragraph (1A), for] the purposes of section 297(3) of the Act a panel must:

(a)have three members, all of whom must be appointed by the relevant trust; and

(b)consist of—

(i)one medical practitioner who is a suitably qualified person;

(ii)one approved social worker; and

(iii)one suitably qualified person.

[F13(1A) In an emergency period the panel may consist of three suitably qualified persons.]

(2) In addition the panel members must—

(a)be unconnected with P;

(b)not be involved in the care and treatment of P; and

(c)have completed training approved by the Department within 12 months of their first occurrence as a member of a panel.

(3) The relevant trust must appoint one of the members as a chair of the panel.

Textual Amendments

Duty to record and retain information and recordsN.I.

42.  For the purposes of section 297(3) of the Act all information and records received by, and produced by, the panel must be retained by the relevant trust for as long as is relevant, but no shorter period than 1 year after the authorisation comes to an end.

Assessment of the best interestsN.I.

43.—(1) For the purposes of section 297(3) of the Act when determining if a deprivation of liberty would be in P's best interests, panel members must be satisfied that—

(a)the determination is not based merely on P's age, appearance, or any other characteristic of P that would lead to unjustified assumptions being made regarding P's best interests;

(b)all relevant circumstances have been considered;

(c)waiting for a time in the future when P may regain capacity, if at all possible, to make the decision for themselves would not be in P's best interests;

(d)as far as practicable, P has been encouraged and supported to participate in the best interest determination;

(e)P's past and present wishes and feelings, beliefs and values and any other factors or written statements have been given special regard when reaching the determination;

(f)relevant people have been consulted, so far as practicable, and that the views of those people have been taken into account;

(g)the proposed deprivation of liberty is the least restrictive appropriate option; and

(h)regard has been given to whether failure to do the act is likely to result in harm to other persons with resulting harm to P.

(2) Panel members may base their assessment of the requirements set out in paragraph (1) solely on the information provided within the application.

Decisions of the panelN.I.

44.—(1) For the purposes of section 297(3) of the Act where a decision by the panel is not unanimous, an authorisation can be granted with the approval of a majority.

(2) The panel is not required to provide formal justification of its decision.

PART 5 N.I.Arrangements When a Deprivation of Liberty is Proposed Before a Person is 16

ArrangementsN.I.

45.—(1) For the purposes of section 61(1) of the Act Part 2 of the Act applies to a person who is within one month of reaching the age of 16 as it would to a person who is over 16 if a deprivation of liberty is proposed to be done in respect of a person after that person has reached the age of 16.

(2) A report under paragraph 2 of Schedule 2 to the Act (report authorising detention in hospital for examination etc.) cannot be made before the person has reached the age of 16.

PART 6 N.I.Transitional Arrangements Relating to the Mental Health (Northern Ireland) Order 1986

Limitations to commencement of the Mental Capacity ActN.I.

46.  For the purposes of section 307(4) of the Act until the coming into force of paragraphs 6 and 10 of Schedule 8 to the Act the provisions of the Act that are included in the Schedule to the Mental Capacity (2016 Act) (Commencement No. 1) Order (Northern Ireland) 2019 M7 and which are commenced by Article 2 of that Order do not apply in any circumstances in which a deprivation of liberty may instead be authorised by virtue of the provisions contained in Part 2 or Part 3 of the Mental Health (Northern Ireland) Order 1986() M8.

Marginal Citations

Sealed with the Official Seal of the Department of Health on 7th November 2019.

L.S.

Mark Lee

A senior officer of the

Department of Health.

Regulation 37

F14SCHEDULEN.I.Statutory Forms

Textual Amendments

Index of Forms

FormTitle
Form 1Statement of incapacity
Form 2Best interests determination statement
Form 4Care plan
Form 5Application for trust panel authorisation
Form 6Medical report
Form 7Statement that the person lacks capacity whether an application should be made to the Review Tribunal
Form 8Short-term detention authorisation for examination or examination followed by treatment
Form 9Consultation with approved social worker
Form 10Short-term detention admission exception certificate
Form 11Short-term detention admission report
Form 12Short-term detention further admission report
Form 13Short-term detention further report
Form 14Extension authorisation (extension by report)
Form 15Responsible person statement
Form 16Application for trust panel extension authorisation

Explanatory Note

(This note is not part of the Regulations)

These Regulations provide technical details for the Mental Capacity Act (Northern Ireland) 2016 and come into effect on 2nd December 2019.

Part 1 provides definitions relevant to all the Regulations.

Part 2 provides details on the definition for the requirements of suitably qualified persons and notes that this can be a number of health and social care professions, with relevant experience and training approved by the Department. The Part also provides provisions for changes to the Act in situations where a person who has capacity is making a declaration, revocation or appointment of a nominated person but is physically unable to sign personally.

Part 3 provides details on information that is required during a detention amounting to a deprivation of liberty, authorisations and extensions of authorisations.

As required in section 57(4) Part 3 prescribes that P, the nominated person and any persons P has asked to be notified as soon as a detention occurs and that information about the detention, including under what provisions, the rights of P under the Act and how the Review Tribunal operates is provided. Part 3 also prescribes that P and any person P has asked to be notified is notified when P is discharged from detention. As allowed in section 58 Part 3 prescribes that this information must be made in writing and must be approved by the Department.

Part 3 also prescribes details about applications for trust panel authorisations, reports in respect of short-term detentions and extensions, including who can apply or make the reports and information that must be included in the application, care plan and medical report.

Part 3 also prescribes the Forms which must be used in respect of authorisations and the Forms can be found in the Schedule to the Regulations.

Part 4 provides the details on trust panels. It is prescribed in Part 4 the requirements on a person who is on a trust panel, how the panel operates and how the panel makes decisions.

Part 5 provides transitional arrangements for a person who is not 16 but where a detention amounting to a deprivation of liberty is proposed after the person's birthday. This will allow a seamless transition into the statutory framework of the Act by allowing safeguards and additional safeguards to be done in the month leading up to the 16th birthday.

Part 6 provides a transitional arrangement noting that if a person can be detained under the Mental Health (Northern Ireland) Order 1986, the Mental Capacity Act (Northern Ireland) 2016 cannot be used.