3. 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.
4. O'Sullivan, Re Application for Judicial Review [2001] NIQB 16
FACTS
On 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 to
premises 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, she
attacked a sleeping elderly female patient with a razor blade. Her victim sustained lacerations to her
face 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 available
in Northern Ireland and it was agreed that the initial plan of a six-month stay would have to be
extended. The applicant's solicitors accepted that she required special accommodation due to her
violent 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 requiring
treatment under conditions of special security, the Department was in breach of its obligations
under Article 110 of the Mental Health (Northern Ireland) Order 1986 and the Human Rights
Act 1998.
5. O'Sullivan, continued
HELD (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 application
of Article 6(1). Even if this was wrong, compliance with Article 6(1) could still be achieved by
providing 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 the
ability 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, if
justified, these restrictions do not breach Article 8. For example, a prisoner has no right to choose
where he will serve his sentence and only in exceptional circumstances will the detention of a
prisoner a long way from home constitute a violation of Article 8. In this case, the breach of the
applicant's Article 8 rights resulting from her transfer to Carstairs has been shown to be necessary
and proportional.
There was no evidence to indicate that the Regional Secure Unit project had yet lost any priority. In
the circumstances, the applicant had not established any breach of her Article 8 rights in relation to
the exercise of the Department's powers under Section 110 of the 1986 Order.
6. 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.
7. 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.
8. 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 ds
N o r t h er n N o r t h er n
1080.9 43.7 days 558.6 80.0 days
Ireland Ireland
Holywell 151.1 60.9 days Muckamore
318.0 825.8 days
Abbey
Knockbracken 140.2 114.2 days Longstone 140.4 152.1 days
Tyrone &
126.2 35.2 days Stradreagh 68.0 58.8 days
Fermanagh
St Luke’s 124.7 63.0 days
Downshire 105.8 73.1 days
9. Mental handicap in-patient data
900
800
Lo n g sto n e
700
Oa k la n d s
600
Cau se way
500 Str ad r e ag h
400 F o r e st Lo d g e
300 M u ckamo r e Ab b e y
200 No r th e r n Ir e lan d
100
0
A v g No. A v er age Length
Oc c upied Beds of Stay ( Day s )
10. 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 ds
U n i t e d K i n g d om 28 7 1 39
S c o t l an d 34 13 1 57
W ale s 32 8 1 48
N o r t h e r n I r e l an d 26 7 3 49
E n g l an d 27 1 2 36
Source: National Statistics, UK Health Statistics, 2006 edition
11. 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 bed
N . I r e l a nd 1003 1941
E n g l an d 1018 65 8 5 8000
7000 England
6000
S c o t l an d 1097 5102 5000 Wales
4000
Scotland
3000
W ale s 1753 7176 2000 Nor ther n
1000 Ir eland
Source: Eldergill, Analysis of UK population and health 0
statistics databases Pe r Pe r
M .I. L.D.
bed bed
12. 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.
13. 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
£2,500
S c o t l an d £ 2 0 46 £2,000
£1,500 Scotland
N . I r e l a nd £ 1 8 99 N. Ireland
£1,000
Wales
W ale s £1834 £500 England
£0
£ per
E n g l an d £ 1 69 1 head
Source: National Statistics, UK Health
Statistics, 2006 ed.
14. 2 — The Legislation
The Mental Health (Northern Ireland)
Order 1986
15. 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
16. 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
17. 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.
18. ‘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.
19. Forms of ‘mental disorder’
For m Definition Relevance
“mental illness" means a state of mind which affects a person's 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 or
impairment” 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 requires
handicap” of mind which includes severe impairment of a classification of
intelligence and social functioning; mental illness or
severe mental
handicap.
20. Applications for assessment
SINGLE 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 certify
two days beginning with the date the recommendation was
signed.
to be necessary in exceptional
circumstances.
21. Application Grounds
4.—(2) An application for
assessment may be made in respect
of a patient on the grounds that—
(a) he is suffering from mental
disorder of a nature or degree
which warrants his detention in a
hospital for assessment (or for
assessment followed by medical
treatment); and England & Wales
(b) failure to so detain him would (b) He ought to be detained
create a substantial likelihood of in the interests of his own
serious physical harm to himself or health or safety or with a
to other persons. view to the protection of
other persons.
22. ‘A substantial likelihood of serious physical harm’
2.—(4) In determining for the purposes of this Order whether the failure to detain
a patient or the discharge of a patient would create a substantial likelihood of
serious physical harm—
(a) to himself, regard shall be had only to evidence—
(i) that the patient has inflicted, or threatened or attempted to inflict, serious
physical harm on himself; or
(ii) that the patient's judgment is so affected that he is, or would soon be, unable
to protect himself against serious physical harm and that reasonable provision for
his 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 in
reasonable fear of serious physical harm to themselves.
23. Nearest relative’s position
2003/04 Number Percent
ASW applications 1,166 78%
Nearest Relative applications 329 22%
Source: Mental Health Commission for Northern Ireland
Who is the Preference is given to a relative who is ‘caring for the patient’. Mere residence
nearest 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 the
patients 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).
24. 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 second
7 day period from the date of admission
25. 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
26. Renewing detention for treatment
Period By whom Procedure
First renewal. For second 6 Examination during final month of the first six
RMO
month period. month period.
Examination during final two months of the
Two medical second six month period. One of the doctors must
Second renewal. For a practitioners. not be on the staff of the hospital and not have
further 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 the
renewals. 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.
27. Discharge
Who may make an order in writing
Mandatory where satisfied that the patient does not
Responsible medical meet the criteria for detention for treatment. (The
drafting is imprecise.) RMO requires the consent of the
officer
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 detention
Nearest relative for treatment (sic) or if the RMO is not satisfied that
the patient, if discharged, would receive proper care.
28. Number of compulsory admissions
Compulsory admissions under the 1986 Order, 2004/2005
There were 1,105 compulsory admissions in all (557 male, 548 female). This constitutes
one admission per 1,195 people aged 16 or over. In England & Wales, the figure for
2003/04 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 People's C entre
admissions Shaftesbury Square
29. Short-term provisions
Power 1983 Act 1986 Order
Detention of informal in- Section 5(2). Articles 7(2), 7A(2). Any medical practitioner on
patients 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 an
patients 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 founded
assessment initially on a single medical recommendation.
Warrant to enter private Section 135 Article 129(1). 48 hours only. Constable
premises — ill-treatment, etc. (1). accompanied by a medical practitioner only
Warrant to enter private Section Article 129(2). 48 hours only. Constable must
premises — taking/retaking 135(2) (c.f. may) be accompanied by a medical
patients 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). Constable
place to which public have access under a duty to inform some responsible person
residing with the individual and the nearest
relative of the removal.
30. 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.
31. 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.
32. Guardianship statistics
One mental illness
During the year ending 31 March application per
102,353 people
2004:
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.
33. Connor, Re An Application for Judicial Review [2004] NICA 45, CA
FACTS
The appellant was diagnosed as suffering from cognitive impairment as a result of long-term alcohol
abuse. On 12 December 2000, she was detained under the 1986 Order and transferred to Holywell
Hospital. In November 2001, she was transferred to Chisholm House as a detained patient. In May
2002 she became the subject of a guardianship order. On 22 November 2002, she married Mr
Kenneth Connor.
Mrs Connor wished to live with her husband. On 12 December 2002, the guardianship order was
renewed, and thereafter Mrs Connor was permitted to have one overnight visit per week with her
husband.
Mrs Connor began judicial review proceeding against the trust's decision to require her to reside at
Chisholm House, on the basis that this decision constituted breach of her rights under article 8 and
article 12 of the European Convention.
SUBMISSIONS
The trust accepted that its decision to require Mrs Connor to live in Chisholm House constituted an
interference with her article 8 rights. It submitted that this decision was taken in accordance with law
and 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 social
workers and others, and relied on by the respondent, do not demonstrate that the trust considered
the applicant’s situation against the background of her right to marry and found a family or her right
to a private and family life. There was no analysis of the applicant's situation ‘through the prism of
the European Convention’ nor was there any analysis of the alternatives that might be open to the
trust.
34. Re Connor, continued
HELD (KERR LCJ)
It was well settled that in order to satisfy the requirement of proportionality three criteria must be
satisfied:—
(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 that
objective – 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 to
accomplish the legitimate objective – the more severe the detrimental effects of a measure, the more
important 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 appellant's article 8 rights. In none of the documents
generated by the trust's 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 involved
quite a different approach from an assessment at large of what is best for the person affected. The
trust’s consideration of Mrs Connor's 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 was
necessary with Mrs Connor's convention right, it would in any case have been bound to have come
to the conclusion that it did.
35. 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.
36. 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.
37. 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 patient's 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 ).
38. Commission’s Functions
Visiting and As often as the Commission thinks appropriate, to visit and interview in private
interviewing 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 be
Inquiries 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 trust
making or a person carrying on a private hospital, residential care home, voluntary home or
inquiries 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 body
function 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.
40. 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
41. 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.
42. 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.
43. Other distinctive provisions
Rehabilitation 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)
44. Other distinctive provisions
Patients’ money Where it appears to a Board or HSS trust that any patient in any hospital or in
and 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 accordance
detention 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).
45. 3 — Future developments
— The reorganisation of services
— The Review of Mental Health &
Learning Disability
46. 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.
47. 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.
48. 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?
50. 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.
