GUIDELINES ON THE USE OF THE MENTAL HEALTH (NORTHERN IRELAND) ORDER 1986

INTRODUCTION

What is the Mental Health (Northern Ireland) Order 1986?

The Mental Health (Northern Ireland) Order 1986 is an important law in relation to the care, treatment and protection of people who experience mental disorder. LINK TO The Mental Health (Northern Ireland) Order 1986

What is Mental Disorder?

Mental Disorder is a generic term that is used throughout the Order to refer to everyone to whom the Order as a whole applies. It is defined in the legislation as "mental illness, mental handicap*, and any other disorder or disability of mind". (Article 3 Para 1)

* The term mental handicap is used throughout the legislation to refer to the group of people now referred to as having a learning disability

What is the purpose of the Order?

In most situations people will choose whether or not to seek help for their mental disorder and will do so voluntarily. They will have the right to accept or decline care and treatments, to choose to be treated in hospital or in the community, to leave hospital at any time and to live independently and without interference in the community.

The Order provides a framework for the care, treatment and protection of all persons with a mental disorder and establishes systems through which the statutory rights of individuals and their relatives are protected and the duties, responsibilities and powers of professionals regulated.

The powers and protections set out in this legislation apply to all persons with a mental disorder in Northern Ireland, adults and children, regardless of whether they are a resident in the jurisdiction or not.

The Order also contains provisions in relation to some individuals who may, because of the nature and degree of their mental disorder, place themselves and or/others at risk. When this occurs, and when the individual is deemed to be unable or unwilling to accept care and treatment, the law places a responsibility on certain health and social care professionals and others to intervene.

What provisions are contained within the Order?

The first part of the Order (Part 1) is concerned with definitions and these can be found in the Glossary section of this guidance document.

  • Part II of the Order is specifically concerned with providing a legal framework for the compulsory admission for assessment and detention in hospital for treatment of mental disorder and with Reception into Guardianship.
  • Part III contains separate provisions for those persons with a mental disorder concerned in criminal proceedings or under sentence by a court.
  • Part IV sets out the law on consent to treatment for mental disorder.
  • Parts V and Part VI of the Order are primarily concerned with protections for persons with a mental disorder. Part V sets out the role of the Mental Health Review Tribunal in protecting against unjustified detention or Guardianship. Part VI established the Mental Health Commission with a broad remit to oversee the care, treatment and protection of all individuals with a mental disorder. This function has since been transferred to the Regulation and Quality Improvement Authority (RQIA).
  • Part VII is concerned with the Registration of Private Hospitals.
  • Part VIII is concerned with the Management of Property and Affairs of Patients.
  • Part IX Sets out the Miscellaneous Functions of the Department and Boards/ Trusts, including the statutory duty on Trusts to appoint a sufficient number of approved Social Workers for the purposes of discharging the functions conferred on them in the Order.

  • Part X is concerned with Offences.
  • Part XI addresses Miscellaneous and Supplementary matters.

There are also a number of Schedules within the legislation.

What guidance was given with the legislation?

Two guidance documents were produced in 1986 and 1992:

  • A Guide (published 1986) Department of Health and Social Services (NI) LINK TO Mental Health (NI) Order 1986: A Guide and
  • Code of Practice (published (1992) - Department of Health and Social Services LINK TO Mental Health (NI) Order 1986 Code of Practice

While the Mental Health (Northern Ireland) Order 1986 sets out statutory rights, powers and responsibilities, the Guide and the Code of Practice to the Mental Health (Northern Ireland) Order 1986 contain guidance for medical practitioners, Health and Social Care Trusts, hospital staff, approved social workers and others in relation to the admission of patients to hospitals and treatment of persons with a mental disorder and the reception of individuals into Guardianship.

It is important that all those who are involved in providing care and treatment for persons with a mental disorder comply as fully as possible with the guidelines for practice contained in the Code.

1.2 of the Code states: "The Order does not impose a legal duty to comply with the Code but the fact that the Code had not been followed could be referred to in evidence in legal proceedings".

This GAIN Guideline supplements and updates these documents on areas of practice and law. It relies heavily upon them and should be used in conjunction with them.

What other legislation and policy needs to be taken into consideration to guide practice?

A number of pieces of legislation and policy documents should also be considered when carrying out duties and responsibilities under the Order. These include:

  • LINK TO Human Rights Act 1998

The Human Rights Act 1998 came into effect on 2nd October 2000. This important piece of legislation underpins the safeguards and rights of all individuals, including those with a mental disorder. All public authorities, including mental health professionals and others tasked to carry out functions under the Mental Health (Northern Ireland) Order 1986 are now required under domestic law to:

  • Interpret the Order, as far as is possible to do so, in a way that is compatible with the European Convention of Human Rights (ECHR).
  • Ensure that practice is guided by and compatible with the Human Rights Act 1998.
  • Take account of relevant domestic and European case law in relation to these matters in their practice.

The individual rights and freedoms enshrined in the European Convention of Human Rights are now part of domestic law and enforceable in courts throughout the UK including NI courts.

These rights include the Right to:

  • Article 2 Life
  • Article 3 Freedom from torture and inhuman or degrading treatment or punishment
  • Article 4 Freedom from slavery, servitude and forced or compulsory labour
  • Article 5 Liberty and security of the Person
  • Article 6 A fair and public trial
  • Article 7 No punishment without law
  • Article 8 Respect for private and family life, home and correspondence
  • Article 9 Freedom of thought, conscience and religion
  • Article 10 Freedom of expression
  • Article 11 Freedom of assembly and association
  • Article 12 Marry and found a family
  • Article 14 Not be discriminated against in the enjoyment of any of these rights.

While some of these rights, for example Article 3, are considered absolute (i.e. they cannot be interfered with) others, such as Article 5 and 8, are limited or qualified meaning that interference can be justified in certain circumstances.

Those tasked to carry out duties and functions under the Order should consider the following list of considerations before proceeding with any action:

  1. Is there a necessity to act?
  2. Does the decision to act involve any protected rights under the Human Rights Act 1998?
  3. Is there any legal basis upon which to act? Is there a statutory / discretionary power available to you? (i.e. Mental Health (Northern Ireland) Order 1986)
  4. Is the proposed action proportionate?
  5. Is there any other way in which you could pursue your aim which would have less impact on the protected right?

Other Legislation which must be taken into consideration:

  • LINK TO Children Order (Northern Ireland) Order 1995 and amendments
  • LINK TO Personal Health and Social Services Order (Northern Ireland) 1972 – and amendments
  • LINK TO Northern Ireland Act 1998
  • LINK TO The Race Relations (Northern Ireland) Order 1997
  • LINK TO Sexual Offences (Northern Ireland) Order 2008

Guidance which must be considered includes:

  • DHSSPSNI – Promoting Quality Care. Good Practice Guidance on the Assessment and Management of Risk in Mental Health and Learning Disability Services (as revised 2010) LINK TO Promoting Quality Care Good Practice Guidance Mental Health and Learning Disability Services
  • DHSSPSNI Carer and Discharge Guidance. Circular HSS (ECCU) 3/2010 - Carers & Discharge Guidance (PDF 347 KB) pdf LINK TO DHSSPSNI Carer and Discharge Guidance. Circular HSS (ECCU) 3/2010
  • DHSSPSNI (NI) Safeguarding Vulnerable Adults. Regional Protection Policy and Procedural Guidance LINK TO Safeguarding Vulnerable Adults Regional Adult Protection Policy and Procedural Guidelines. September 2006 PDF LINK TO Adult Abuse Guidance for Staff
  • PPANI – Public Protection Arrangements for Northern Ireland Guidance to agencies on public protection arrangements (PPANI) Article 50, Criminal Justice (Northern Ireland) Order 2008 pdf LINK TO PPANI – Public Protection Arrangements for Northern Ireland
  • MARAC - Multi-Agency Risk Assessment Conference. Guidance in relation to MARC arrangements in Northern Ireland can be found on the following website: LINK TO MARAC - Multi-Agency Risk Assessment Conference
  • DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS) – Interim Guidance. Link to Circular Revised Deprivation of Liberty Safeguards Ref: HSC/MHDP – MHU 1 /10 -

Reference will be made to these and other legislation and policy throughout these Guidelines.

Are there Principles to guide practice? Not in the legislation itself, but the Code of Practice contains the following principles in relation to those people with a mental disorder who require care and treatment. They should:

  • Be treated and cared for in such a way as to maintain their dignity;
  • Receive respect for, and consideration of their individual qualities and background – social, cultural and religious;
  • Have their needs taken fully into account notwithstanding the fact that, within available resources, it may not be always practicable to meet them;
  • Receive any necessary treatment or care with the least degree of control and segregation consistent with their safety and the safety of others;
  • Be discharged from any form of constraint or control to which they are subject under the Order immediately this is no longer necessary ;
  • Be treated or cared for in such a way as to promote their self-determination and encourage personal responsibility to the greatest possible degree consistent with their needs, wishes and abilities.

In addition the Code contains a list of specific principles in relation to treatment. 5.3 of the Code of Practice states that all treatment should:

  • Be primarily for the benefit of the patient. Where possible the patient's willing participation should be obtained. The main aims should be, so far as possible, to improve health and reduce handicap including social handicap;
  • Protect the safety of the patient and other people. In the course of treatment or in the interests of safety, restriction of liberty may be necessary but should never be used as a punishment and should only be used as a last resort to the minimum extent necessary;
  • Respect the patient's dignity and rights. No treatment should deprive a patient of food, shelter, water, warmth, a comfortable environment or confidentiality;
  • Respect the patient's rights to privacy and freedom of choice. Forms of treatment, such as psychological treatment techniques, group therapy and behaviour modification programmes, which may intrude on the patient's normal right to privacy and freedom of action, should be carefully planned and conducted by experienced and appropriately trained staff and should be kept under review;
  • Respect the patient's rights to information. Patients are entitled to information and explanation about their condition, and treatment which is proposed, and their rights. This information should be conveyed at a suitable time and in a form which takes account of the patient's capacity to understand. These principles apply to the treatment of all mentally disordered patients whether or not they are in hospital. In hospital practice they apply to both voluntary and detained patients including those admitted under Part III of the Order.

What does this mean for the person with a mental disorder? "This means, in particular, that all individuals should be as fully involved as practicable, consistent with their needs and wishes, in the formulation and delivery of their care and treatment.

They should be informed about the nature, purpose and likely outcome of any proposed treatment.

This applies equally to young patients and to patients who are receiving care or treatment on a compulsory basis.

Where physical difficulties such as hearing impairment impede such involvement, reasonable steps should be taken to attempt to overcome them. It means that patients should have their legal rights drawn to their attention, consistent with their capacity to understand them. Where they cannot understand, their rights should be explained to their carers, relatives or friends as appropriate.

Finally, it means that, when treatment or care is provided in conditions of security, patients should be subject only to the level of security appropriate to their individual needs and only for so long as it is required." Code 1.9

Does the Code contain any additional and specific principles in relation to children and young people under the age of 18 years? Yes. The Code states that practice for this age group should be guided by the following principles:

  • Young people should be kept as fully informed as possible about their care and treatment; their views and wishes must always be taken into account:
  • Unless statute specifically overrides, young people should be regarded as having the right to make their own decisions (and in particular treatment decisions) when they have sufficient "understanding and intelligence";
  • Any intervention in the life of the young person considered necessary by reason of their mental disorder, should be the least restrictive possible and result in the least possible segregation from family, friends, community and school.

These principles should be considered for children and young people regardless of whether they are in hospital on a voluntary basis or are detained.

Within this document, and in line with the Mental Health (NI) Order 1986 and the Code of Practice, reference to one gender includes all, unless the context requires otherwise.