1. Introduction
In 2016 Northern Ireland became one of the first jurisdictions to enact a single capacity-based legal framework to legislate for the involuntary treatment of all in society aged 16 and over. The Mental Capacity Act (Northern Ireland) 2016 (the MCA) provides a capacity test that must be used when considering capacity in relation to involuntary care or treatment. The person (P) lacks capacity if, at the material time, he or she is unable to make a decision for himself or herself about the matter because of an impairment of, or disturbance in the functioning of, the mind or brain. There are three parts to the capacity test; there must be, on the balance of probabilities, a reasonable belief that:
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P lacks capacity to make the decision
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P suffers from an impairment of, or a disturbance in the functioning of, the brain or mind (the diagnostic test)
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there is a link between the diagnostic test and the lack of capacity
It is important to note that it is not necessary for a formal diagnosis or for there to be a medical assessment for the diagnostic test to be met.
The MCA is an example of ‘fusion’ legislation – a generic law applicable across all medical specialties and social care where an intervention is proposed and the person has impaired decision-making capacity (Lynch et al. Reference Lynch, Taggart and Campbell2016). Advocates of this approach argue that a single legislative framework reduces the stigma associated with separate mental health legislation, means greater respect for patient autonomy, removes the potentially confusing interface between mental health and mental capacity legislation, increases choice and flexibility of approach, and has the strong ethical appeal of removing discrimination in the involuntary treatment of those with mental illness (Dawson and Szmukler Reference Dawson and Szmukler2006; Harper et al. Reference Harper, Davidson and McClelland2016).
This paper outlines the genesis of the statute, progress so far, planned next steps and anticipated challenges.
2. Genesis of the MCA
The fusion of mental health and mental capacity legislation was recommended by the Bamford review of mental health and learning disability (2007) which was established in 2002 and was a wide-ranging examination of the delivery of mental health and learning disability services in Northern Ireland. The Bamford review determined that the mental health legislation extant at that time, the Mental Health Order (Northern Ireland) 1986 (MHO), was not compatible with essential principles (autonomy, justice, benefit and least harm). It should be noted that there was no separate mental capacity legislation at that time (in contrast to other jurisdictions); decisions on the treatment of incapacitious patients for whom the mental health legislation did not apply were taken under common law, based on a presumption of capacity and the doctrine of necessity.
The Bamford Review (Department of Health, 2007) called for the development of a single legislative framework for the reform of mental health legislation based on the introduction of mental capacity legislation. The framework should be based on agreed principles which should apply to all healthcare decisions as well as welfare and financial needs. Impairment of decision-making capacity should be a mandatory prerequisite for any interference with a person’s autonomy without their consent. Individuals subject to the criminal justice system should have access to assessment, treatment and care which is equivalent to that available to other people.
A public consultation was held in 2011 which supported this proposal. It was therefore decided to fuse mental capacity and mental health law into a single bill. This resulting draft bill was the subject of another consultation in 2014 followed by its introduction to the Stormont assembly. There, it underwent further consideration and amendment and was passed as the Mental Capacity Act (MCA) receiving Royal Assent on 9 May 2016.
3. Implementation of the MCA to date
The original implementation plan, as agreed at the time of enactment in 2016, aimed for full commencement by April 2020. It soon became clear that this timescale for full MCA commencement would not be achievable. A decision was therefore taken in March 2019 to commence the implementation of the MCA using a phased approach. The first phase of implementation took place between October and December 2019 with the introduction of provisions relating to Deprivation of Liberty (DoL) Safeguards, research, and money and valuables. These provisions have been in place since December 2019.
3.1. Deprivation of liberty safeguards
Introduction of the DoL Safeguards means that people who do not fall under the provisions of the MHO but lack capacity to consent to care and treatment amounting to a deprivation of liberty now have protection and safeguards in statute law.
Under these provisions of the MCA, any act that amounts to a DoL is classed as a serious intervention and must be authorised in one of two ways. Without this authorisation, the person (D) who is depriving another person (P) of their liberty is not protected from liability. A short-term detention authorisation (STDA) authorises detention amounting to a deprivation of liberty in hospital for examination or examination followed by treatment. A STDA requires two medical reports, a formal statement of incapacity, a care plan, a best interests statement and a prevention of serious harm statement. A STDA can only be applied in a hospital setting and lasts for a maximum of 28 days. P must have an illness or a suspected illness and the medical report must supply details of this.
Those not in hospital who require a deprivation of liberty must have this authorised by a suitably constituted Trust Panel (a Trust Panel Authorisation or TPA). A Trust Panel (one for each of the five Health and Social Care Trusts in Northern Ireland) consists of three members: one approved social worker, one medical practitioner and one other healthcare professional. In order to authorise the deprivation of liberty, the Trust Panel must be provided with a formal statement of incapacity, a statement that deprivation of liberty is in the person’s best interests, that failure to deprive the person of their liberty would create a risk of serious harm to the person or serious physical harm to others, that the deprivation of liberty is a proportionate response to this harm. There must also be a consultation with the nominated person (NP), a care plan and a medical report. The Trust Panel must decide within 7 days to grant, refuse or issue an interim TPA (which lasts for 28 days). The panel makes its decision based on the information submitted on the statutory forms and will not meet those involved in the care or treatment of P unless absolutely necessary. An initial TPA lasts for 6 months; the first extension is for a further 6 months and any subsequent renewal lasts for 1 year. Trust Panels can authorise a DoL in any care setting that is not a hospital and in more than one setting, as long as the settings are specified on the application. A TPA is also necessary in P’s own home if P is subject to a care plan there that amounts to a DoL. As can be seen from a comment in Section 4 (below), the concept of the family home being designated as a setting where a DoL occurs can potentially be upsetting for carers.
An authorisation decision (either STDA or TPA) can be appealed to the Review Tribunal (RT) at any time. The RT (formerly the Mental Health Review Tribunal) is an independent judicial body administered by the Northern Ireland Courts and Tribunals Service. An application to the RT can be made by P if they have capacity to do so, or by the NP if P lacks capacity to make an application. There must be an assessment of P’s capacity to apply to the RT as part of the authorisation process. If P lacks such capacity, the authorisation will be referred to the Attorney General, who can refer the case to the RT on P’s behalf if it is considered necessary.
3.2. Progress with DoL safeguards implementation
A Regional Multiagency Mental Capacity Implementation Group has been set up to monitor implementation of the DoL Safeguards. This has representation from the 5 Health and Social Care (HSC) Trusts. The Group gathers monthly data on DoLS activity across the Trusts.
Table 1 (below) outlines the activity undertaken from the introduction of the Deprivation of Liberty Safeguards to March 2023. Given the complexities of the procedures involved (outlined in section 3.1 above), it is evident that implementation has had significant resource implications for health and social care staff. Other points to note include the large number of SDTAs started but not completed (presumably because the clinical picture changes and it is decided that P no longer requires the protection of the MCA, or P is discharged). In addition, a significant proportion of those under both STDAs and TPAs are also assessed as lacking capacity to appeal the authorisation, requiring a referral to the Attorney General for a decision about the need for a review by the Review Tribunal.
MCA activity December 2019–March 2023
3.3. Lessons learned from first phase of implementation
Implementation of the DoLS safeguards has presented many challenges to health and social care staff across the five Health and Social Care Trusts in Northern Ireland. It is a resource-intensive process in terms of both clinical and administrative time.
A project to review the design, content and use of some of the statutory forms was commissioned by the MCA Unit of the Department of Health in early 2024. The aim of the project was to explore whether additional guidance, training and/or amendments could further promote clarity, consistency and efficiency for those completing the forms. One of the authors (GL) was a member of the Project Team. The project’s methodology consisted of:
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a review of international examples of forms used in mental health and mental capacity law
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a survey to capture the views of clinicians
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service user and carer feedback
The project report was not intended for publication but to inform practice and training. It gathered descriptive data only.
The clinicians’ survey was conducted online between January and March 2024. The survey was anonymous and there was a total of 83 responses. The majority of respondents were social workers (37) and medical practitioners (17). Respondents reported that the forms used were generally clear and user-friendly, but they were also described as ‘long, cumbersome and repetitive’. The process was described as having too many forms, with frequent repetition of the same information in different forms. The need for multidisciplinary and interagency training was also highlighted, as was the need for consistency across the Trusts.
The views of service users and carers were sought via focus groups. There were 37 participants in total, all of whom had been involved in the process of a DoL Authorisation. The participants consisted of people with a dementia or an intellectual disability and their carers. Two main themes were explored:
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What worked well?
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What would you like to see changed?
There was some positive feedback, e.g., respondents reporting that:
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‘more people are making sure that P. is getting looked after’
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‘professionals talked to us’
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‘this could keep the care home on their toes’
However, there were also many negative comments:
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‘Too many meetings and phone calls – why are we looking at it over and over?’
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‘All the meetings and reports made no change to the way P is looked after’
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‘Waste of time and money’. ‘Too much wasted time doing forms’
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The questions don’t make sense to me – least restrictive option/functionality’
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‘Stressed before the Review Tribunal – afraid of how I would cope if P was sent home again’
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My son has lived with us from birth….he is not deprived of his human rights in his home – he has family life’
Several carers also expressed concern that P had been put under more restrictive practices than they needed because an authorisation was in place.
The Project Group produced a report that made 11 recommendations to improve processes, communication and training. There has been some redesign of the forms to make them less repetitive but there are limitations to the changes that can be made as the forms have a statutory basis.
4. Planned next steps for MCA implementation
The Department of Health (DoH) has set up an internal project team to develop an up-to-date implementation and funding plan for full MCA implementation and to draft a Code of Practice. The project team consists of legal and policy advisors who will develop a model and will subsequently engage with a multi-agency key stakeholder group to develop a full implementation plan. There is as yet no timescale for full implementation. In the meantime, a regional multiagency group meets regularly to monitor the current status of the DoLS provisions. A regional training group has also been established.
Although there is no timescale for full implementation, the DoH continues to implement sections of the MCA using a phased approach. In September 2024, it launched a consultation regarding the commencement of section 12 (acts of restraint) of the MCA. When enacted, Section 12 will provide staff with protection from liability when implementing restrictive practices required within MCA care plans. At present, Trusts must still rely on the common law or, in some circumstances, apply to the courts for declaratory orders for lawful authorisation of such acts.
The Act provides for the provision of an independent mental capacity advocate (IMCA). An IMCA must be in place when the Act requires an act to be authorised or, although not requiring authorisation, is a serious compulsory intervention. Although not a decision-maker, there is a duty to consult and to take into account the views of the IMCA, whose role is to represent and provide support to P. This important additional safeguard has not yet been put in place.
In addition, a Joint Protocol working group to support interagency working has been established – there are challenges when a service user needs the support of the ambulance service and Police Service (PSNI) to convey them safely to hospital or their place of residence. The Strategic Planning and Performance Group (the part of the Department of Health responsible for the planning and overseeing the delivery of health and social care services) is leading a multiagency working group to develop guidance to support all agencies in these situations.
5. Anticipated challenges for full implementation
5.1. Resourcing
As can be deduced from the figures above, the implementation of DoLS has been resource intensive. Both the STDA and the TPA require a suite of forms that are statutory and document the evidence that protects D from liability and therefore authorises the deprivation of liberty. The need for formal assessments of capacity, consultation with the nominated person, determination of best interests, assessment of risk of serious harm and medical reports are all necessary safeguards under the MCA but take considerable clinical time. The five Trusts have each set up MCA teams to operationalise the DoLS implementation. The teams arrange for medical reports to be obtained in various ways, including sessional practitioners and also medical practitioners with dedicated MCA roles. Training (online) is mandatory and the five MCA team leaders in each trust meet regularly as a regional group to discuss operational matters. However, as more parts of the MCA are implemented, the pressures on clinical time are likely to increase, which will cause difficulties for an already over-stretched service.
It could be argued that the challenges around resourcing should have been anticipated. In 2017 the Law Commission in England and Wales (Law Commission, 2017) reviewed the DoLS scheme. The intervention ultimately led to the replacement of DoLS by Liberty Protection Safeguards (LPS). Whilst this is not the place to explore the merits or otherwise of LPS it is within the scope of this paper to highlight the criticisms of DoLS that were published by the report. It was identified that DoLS were over-technical and that, combined with a shortage of staff, led to a backlog of cases and cases falling outside legal timeframes. This scenario occurred even with the DoLS scheme in England and Wales not applying outside of hospitals and care homes as opposed to Northern Ireland where they apply across the community.
5.2. Application of the MCA to those with functional mental illness
The full implementation of the MCA and resulting repeal of the MHO will mean a significant change in practice for psychiatrists and other clinicians working with those who have mental illness. A lack of capacity to consent to clinical intervention will be a prerequisite for involuntary treatment. Given this, there are many potentially significant clinical questions that require consideration. These include but are not limited to:
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the reliability and consistency of capacity assessments in those with psychosis and affective illnesses
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how to manage fluctuating capacity
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the relationship between insight and capacity
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P’s not engaging in or consenting to an assessment
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the question of decision-making capacity in patients with personality disorder
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the question of patients who retain capacity but may represent a risk to self or others
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potential conflict between human rights (especially the right to life) and autonomy (Lynch et al. Reference Lynch, Taggart and Campbell2016).
Evidence from the UK indicates that capacity assessments in psychiatric populations can be reliable when structured tools are used but in practice remain variable, especially in cases involving impaired insight or fluctuating mental states (Owen et al. Reference Owen, Szmukler, Richardson, David, Hayward and Hotopf2009; Cairns et al. Reference Cairns, Maddock, Buchanan, David, Hayward, Richardson and Szmukler2005). Insight has been identified as a key discriminator of capacity in psychosis, though its role is nuanced and not determinative on its own. In Northern Ireland, where the MCA introduces a single legal threshold across all health and social care, ensuring consistency in how capacity is assessed will be critical. Further difficulties arise with fluctuating capacity and with service users who refuse to engage in assessments. Case law from the Court of Protection in England and Wales (e.g. Royal Borough of Greenwich v CDM, 2019; QJ v A Local Authority, 2020) illustrates the complexity of assessing capacity over time or in the face of disengagement, both of which will be live issues under the Northern Ireland framework. Similar complexities apply to decision-making in patients with personality disorder, where emotional dysregulation may impair the ‘using and weighing’ element of the test without necessarily indicating a global incapacity (Ayre et al. Reference Ayre, Owen and Moran2017).
The potential benefits of the fusion approach to involuntary treatment have been outlined in the introduction to this paper (section 1 above). Potential problems and difficulties with this approach should also be acknowledged. As the MCA retains a diagnostic test, it could be argued that a discriminatory element remains and the MCA is incompatible with Article 14 (1)(b) on the United Nations’ Convention on the Rights of Persons with Disabilities (CRPD) (as is current mental health legislation).
One of the most contentious challenges is how the MCA will respond to patients who retain capacity but present serious risk to themselves or others. As the MCA does not permit interventions based solely on risk in the absence of incapacity, clinicians may face significant ethical dilemmas. Whilst some safeguards exist, such as proportionality and risk of serious harm thresholds for certain authorisations, these may not always be sufficient to meet public protection concerns (Szmukler and Kelly, Reference Szmukler and Kelly2018). The key definitions for entry into the criminal justice provisions of the Act are vastly more inclusive than those of their predecessors and those found in other jurisdictions (Campbell and Rix, Reference Campbell and Rix2018). However, whilst safeguards such as proportionality and the requirement for serious interventions to be justified by risk of serious harm are built into the Act, these do not provide for detention based solely on risk when capacity is retained. This has led to ongoing debate over whether the Act is sufficiently responsive to high-risk cases. These tensions highlight the importance of a detailed Code of Practice and structured judicial oversight to ensure that autonomy is upheld without compromising safety (Davidson et al. Reference Davidson, McClelland, Harper, Lynch and McKenna2023).
The use of ‘best interests’ as a criterion for a DoL could be seen to be paternalistic. However, the Code of Practice makes it clear that a ‘best interests’ decision is a holistic consideration of all relevant factors that it would be reasonable to consider; it starts with consideration of what decision P would have made if P had capacity to make the decision, not what a professional or a relative think that P should do.
There will, in addition, be training requirements particular to clinical specialisms such as learning disability, eating disorders, liaison psychiatry, forensic mental health, addictions psychiatry and CAMHS. In the case of CAMHS and learning disability, particular attention must be paid to potential problems in the interface between the MHO (still to be used for those under 16) and the MCA. These unresolved challenges highlight the need for robust training, clear guidance, a detailed Code of Practice and case-based resources to support clinicians in navigating this shift, rather than legislative overhaul. The Royal College of Psychiatrists in Northern Ireland is working with others to develop a range of case-based clinical scenarios that address complex questions such as those listed above which will be used to inform the work of the Department of Health implementation team. However, it is possible that some questions will only be decided by the courts after the legislation is implemented.
5.3. Children and young people
The provisions of the MCA apply to those aged 16 and over. The MHO will continue to apply for the small number of those under 16 who require treatment for mental illness and meet the criteria for detention under the Order. Questions concerning the interaction between mental capacity, developmental capacity, emerging capacity and parental responsibility are complex and present many challenges to legislators (Anderson et al. Reference Anderson, Davidson, Doherty, Hanna, Harper, Lynch, McClelland and McKenna2023, Farrell et al. Reference Farrell, Agnew and Hann2025). At present, we remain in the anomalous position of the MHO remaining in place for those few children under 16 who require treatment for mental illness and meet the criteria for detention under the Order. In an attempt to address this anomaly, an amendment to the MHO in relation to involuntary treatment of children under 16 years of age came into effect in December 2019. There is now an explicit requirement to take account of a child’s best interests regarding decisions involving involuntary treatment when a child under 16 is being treated for a mental disorder. Nevertheless, it remains the case that those under 16 years subject to involuntary treatment are excluded from accessing a range of safeguards and human rights protections under the MCA (Farrell et al. Reference Farrell, Agnew and Hann2025).
5.4. Increasing awareness among all stakeholders about the culture change involved in full implementation of the MCA
The introduction of capacity-based legislation marks a fundamental shift in the approach to involuntary psychiatric treatment from practitioner beneficence towards respect for P’s autonomy. It is important that the MCA is not seen as relevant only for those working in mental health services and that there should be awareness of the principles underlying the MCA across society, including the general public, the police and the judiciary. It is only if this occurs that the anticipated benefits of the fusion approach can be realised.
5.5. Advance decisions
The MCA does not contain statutory provisions for advance decisions to refuse treatment, the rules for which continue to be determined by common law. However, it makes it clear that any act to treat P that conflicts with an effective advance decision under the common law will not attract protection from liability. The DoH has recently (October 2022) published a policy document ‘For Now and For The Future’ (Department of Health, 2022) which sets out in detail an advance care planning policy for adults in Northern Ireland and describes how it interacts with the MCA.
6. Conclusion
It is too soon to draw any firm conclusions about the effectiveness or otherwise of the operation of the Northern Ireland DoLS provisions, given it has only been operational since early December 2019. Besides being premature, any such assessment has been further complicated by the introduction of changes to the scheme brought about by the emergency legislation to address the COVID-19 pandemic (Farrell and Hann Reference Farrell and Hann2020). Key aspects of the DoLS scheme which were impacted by the changes included which ‘suitably qualified persons’ could make formal assessments of capacity; the role and functions of the nominated person; how applications were to be made for DoLS authorisations; the composition and methods of decision-making by Trust panels making DoLS authorisations; and the appeal mechanisms to the Review Tribunal. Although these changes have not been renewed, they have led to delay and diversion of attention from the implementation and from evaluation of the DoLS provisions.
Full implementation of the MCA in Northern Ireland provides a unique opportunity to study the potential benefits and pitfalls of the fusion approach to involuntary treatment. The independent review of the Mental Health Act in England and Wales, chaired by Sir Simon Wessely (HM Government, 2018) set out five confidence tests that would need to be met before fusion legislation is started in England and Wales. One of these tests was an assessment of the impact of the Northern Ireland legislation when it is implemented. In our view, it is vital that the implementation of the MCA be fully evaluated.
However, before it is evaluated it needs to be effectively implemented. In his foreword to the Northern Ireland Mental Health Strategy 2021–2031 (Department of Health, 2021), the then Minister for Health outlined the pressures under which mental health services were operating, with inpatient services consistently operating above 100% occupancy, the regional child and adolescent unit at full capacity, increased referrals to community services and increased acuity of patients. The strategy acknowledged that mental health services in Northern Ireland were underfunded compared to other UK jurisdictions and recognised that significant investment was required. Realisation of the potential benefits of fusion legislation requires a strong commitment to changing culture and awareness across all of society, a well-resourced mental health service and a fully resourced awareness-raising, education and training programme. It will be a challenge to realise those benefits given the pressures under which mental health services in Northern Ireland currently operate.
Financial support
This article received no specific grant from any funding agency, commercial or not-for-profit sectors.
Competing interests
The authors have no conflicts of interest to declare.
Ethical standards
The author asserts that all procedures contributing to this work comply with the ethical standards of the relevant national and institutional committee on human experimentation with the Helsinki Declaration of 1975, as revised in 2008.
