Many years in development, the Mental Capacity Act (Northern Ireland) 2016 received Royal Assent in May 2016. It is unique within the United Kingdom in combining mental health and capacity in one piece of legislation.
The Act applies to people aged 16 and over. It considers their capacity independently to make decisions about their health, welfare or finances, and the safeguards that must be put in place if they lack the capacity to do so. The Act is based upon consideration of “… impairment of, or a disturbance in the functioning of, the mind or brain”. This differs from the current Mental Health (Northern Ireland) Order 1986, which applies to any person with a “mental disorder”.
The safeguards within the Act are not about having mental ill health or a learning disability. It is irrelevant whether or not an individual has any disorder or disability. The Act applies where a permanent, temporary or fluctuating lack of capacity independently to make decisions concerning health, welfare and/or finances has been established.
There are many circumstances where it may be necessary to consider if individuals have the capacity to make a decision for themselves due to an impairment or disturbance in the functioning of the mind or brain. This could include dementia, cerebrovascular accident, brain injury, psychosis or the unconscious patient. It is relevant in various care settings, for example, hospitals, care homes, GP surgeries, health centres and, in some cases, an individual’s own home.
Between June and September 2017, the RCN in Northern Ireland facilitated a series of awareness workshops attended in total by more than 260 members. The workshops provided information about the Act, the supporting draft regulations and the associated draft Code of Practice. The workshops introduced almost 30 different scenarios based on real work and life experiences, considering how the application of the Act will impact upon these situations. The scenarios were submitted to the Northern Ireland Department of Health Mental Capacity Act Implementation Team to be considered for inclusion in the Code of Practice. A full draft of the Code of Practice is due to be issued soon by the implementation team for public consultation.
The working date for full implementation of the Act is 2020, although the current absence of devolved government in Northern Ireland may affect this target. As work progresses towards implementation, further workshops and training will be available. It is vital that nursing staff know and understand the legalities in preparation for full implementation. Whilst the Act provides a legal footing for the principles of presumption of capacity and best interests, these are valuable principles that every nurse should fully understand, embrace and apply in their practice, regardless of any delay in implementation of the Act.