AQW 18805/22-27


Ms Claire Sugden
Independent
East Londonderry


Tabled Date: 26/11/2024
Answered On Date: 03/01/2025
Priority Written: No


Question:
To ask the Minister of Health (i) for his assessment of the varying interpretations of mental capacity in medical settings compared with care settings, including domiciliary care; and (ii) to detail any plans he has to address this.


Answer:
(i) The Mental Capacity Act (Northern Ireland) is legislation designed to promote rights and safeguard vulnerable people who are not able to make decisions for themselves. It also includes rules around the Deprivation of Liberty Safeguards (DoLS).
The legislation is designed to support decision making for people who are vulnerable, whilst also promoting autonomy and inclusion.
There are five statutory Principles that are to be upheld at all times when working under this legislation.
These are:
No-one should be treated as lacking capacity unless proven they do
No assumptions can be made (based on any condition the person may have, or any characteristics of the person)
Help and support must be provided
No assumptions can be made because of unwise decisions
All acts and decisions must be made in the person’s best interests.
The Act provides staff, carers, senior clinicians and managers, direction on the applicability of this legislation, known as the Deprivation of Liberty Safeguards, and affords protection from liability as long as decision making includes:
A reasonable belief that the person lacks capacity to make a particular decision;
A reasonable belief that the decision is in the person’s best interests;
A belief that failure to detain the person would create a risk of serious harm to that person or someone else; and
That the additional safeguards required for lawful deprivation of liberty, are in place.
The Deprivation of Liberty Safeguards are applicable across all settings, including medical, care homes and domiciliary care and decisions taken in relation to Deprivation of Liberty must be authorised by due process.
The professionals who work with patients across these settings are required to undertake person centred assessments to determine, if they meet the threshold for a deprivation of liberty authorisation.
Mental Capacity legislation can be applied in both medical and care settings to reflect both the needs of the individual and the setting in which the patient is currently in.
If it is believed that a person lacks capacity; is unable to leave, and under continuous control and supervision; their confinement is guided by whether an application is made for a Trust Panel Authorisation (TPA) or Short-Term Detention Authorisation (STDA) to provide the authority to detain a person.
STDA applications are made for patients who may require this authority whilst they are in an acute setting for a relatively short period. This authorisation, as the title reflects, enables the patient to be cared for, under continual supervision and control, (meaning they are not free to leave), for up to 28 days.
People who reside in care homes or domiciliary settings normally require a Trust Panel Authorisation (TPA) which lasts longer than a STDA. The TPA is put in place for up to 6 months with the option to extend for a further 6 months and yearly thereafter. 
The interpretation and application of mental capacity in Northern Ireland can vary between medical and care settings, including domiciliary care, due to the partial implementation of the Mental Capacity Act (Northern Ireland) 2016 (MCA).
At present, the Act is only operational in the context of Deprivation of Liberty Safeguards (DoLS). Other decisions involving capacity - such as consent to treatment, financial decisions, or care arrangements - continue to rely on common law principles or Declaratory Orders issued by the courts.
In medical settings, capacity assessments are often focused on immediate, acute decisions, such as consent to treatment or refusal of interventions. These assessments are typically carried out by doctors or other healthcare professionals based on common law principles, which emphasise the individual's ability to understand, retain, process information, and communicate a decision. A Declaratory Order may be sought in complex or contentious cases to ensure clarity and legal protection. It can be applied for through the High Court, when it is deemed necessary to intervene to protect those who have been assessed as lacking the relevant capacity, to ensure often urgent, medical interventions are lawful and are in the patient’s best interests.
In care settings, including domiciliary care, the context differs. Capacity decisions often relate to broader, long-term matters, such as daily living arrangements, financial management, or routine care needs. These assessments may be conducted by multi-disciplinary professionals, often without the formalised framework that the Act provides.
For decisions involving deprivation of liberty, DoLS processes under the Act apply, but other capacity-related decisions are governed by common law or Declaratory Orders.
The lack of full implementation of the Act creates variability in how capacity is interpreted and applied across different settings, potentially impacting individuals' rights and protections.
The Department of Health recognises the challenges posed by the partial implementation of the Act and the resulting reliance on multiple legal frameworks. While the Department is currently considering the commencement of provisions relating to restraint, there are no indicative timings at this stage for full MCA implementation. Work is ongoing to develop an updated implementation plan for full commencement that will enable a better understanding of funding and resource need.
(ii) Each Health and Social Care Trust has assurance arrangements in place to monitor the application of the legislation. This is also reviewed by the Attorney General’s Office and the Review Tribunal.