Publications

NIHRC Submission on the Draft Mental Capacity (NI) Bill Consultation

Executive Summary

The Department’s proposals for recognition of capacity represent a substantial progress in developing greater adult capacity. Whilst noting that the Bill contains aspects which are broadly in compliance with the UNCRPD by continuing to make provision for substitute decision making, on the basis of the Committee’s interpretation, the proposals are in breach of Article 12. Alongside the other UK Commissions the Commission raised concerns with the UNCRPD Committee regarding the lack of clarity provided by the then draft General Comment 1. Noting that the draft General Comment did not fully consider regional human rights standards, in particular the ECHR, the Commissions advised the Committee to “consider and clearly articulate how Article 12 of the CRPD is to be read alongside regional international law and standards”. The finalised General Comment unfortunately did not address this matter. The Commission acknowledges that supported decision making is an emerging area of law and practice, which makes the task of the Departments in ensuring compliance complex.

The Commission advises that to fully inform the UNCRPD Committee prior to the examination the Northern Ireland Executive should develop a further submission to inform the Committee of the proposals within the draft Bill and to set out measures taken to meet compliance with the UNCRPD, Article 12. In addition as this is a developing area of law the Commission advises that the Departments undertake to carry out a systemic review the implementation of the Bill/Act commencing within 2 years of its enactment. This review should take account of developments in international human rights law and assess compliance in light of established practice.

The Commission notes that a significant number of clauses are not yet drafted. In addition following the Departments decision not to apply the Bill to under 16s and to retain the Mental Health (NI) Order 1986, amendments are required to the 1986 Order. A number of these have been identified by the Departments in the consultation document. However further amendments will be required.

The Commission advises that a project plan with a clearly defined timetable for the separate project to consider a bespoke legal framework governing capacity within children under 16 years of age should be developed and made publicly available. The Commission further advises that a resolution of this issue should be identified as early as possible is recommended.