The Northern Ireland Department of Health, Social Services and Public Safety proposes to introduce combined mental health and mental capacity legislation in early 2011. A consultation process has commenced and the Department is receiving submissions on the proposed legislation up to 31 October 2010. This legislative proposal is significant as it would make Northern Ireland the first jurisdiction to introduce such a combined approach (although there are some examples of jurisdictions, such as Scotland, which have introduced a capacity test in mental health legislation).

Those in favour of a combined system argue that this will prevent individuals from falling between the cracks of existing legislative provisions. It is also argued that a combined mental health and mental capacity system would be more compliant with international human rights norms, especially the UN Convention on the Rights of Persons with Disabilities (CRPD)– as it would prioritise autonomy and capacity (rather than diagnosis of mental disorder and risk of harm) as the key principles in determining whether compulsory treatment or detention can be authorised.

The proposed legislation in Northern Ireland is based on the report of the Bamford Review of Mental Health and Learning Disability which recommended that legislation on mental health and mental capacity should be based on the following common principles: autonomy, justice, benefit and least harm. An Equality Impact Assessment has also been conducted on the proposed Mental Capacity (Health, Welfare and Finance Bill) which describes how the legislation will operate. Essentially, a legislative presumption of capacity will be introduced, and where a person is found to lack capacity to make a particular decision (whether financial, medical or personal) the Act will set out safeguards to ensure that substitute decision-makers exercise their powers in a manner which respects the fundamental rights of the person. The Bill will also provide for lasting powers of attorney, advance directives and advocacy support where a substitute decision-maker is appointed.

This combined approach is based on the contention that the presence of mental disorder should not warrant a removal of decision-making capacity. Proponents of the combined approach describe the current system as discriminatory, since it allows a competent patient to refuse life-saving treatment for a medical condition, but can force the same patient to undergo treatment for a ‘mental disorder’ which is not life-threatening. However, those opposed to the combined approach argue that this kind of reform is unlikely to have much of an impact on clinicians in making decisions about treating mental disorders and that mental illness cannot be equated with other medical conditions in terms of capacity to consent. Other arguments against combined legislation relate to the practicalities of implementing such broad-ranging provisions – especially in terms of educating law enforcers, the judiciary, and medical professionals about its implications for their work.

This debate is discussed in further detail by a number of authors in a recent special issue of the Journal of Mental Health Law: with Szmukler, Daw and Dawson arguing in favour of a holistic approach to this kind of legislation (with the inclusion of a draft model statute) and others such as Appelbaum and Burns arguing for separate legislation on involuntary detention and treatment for mental disorder. Appelbaum in particular discusses two objections to the capacity-based mental health law which are worth noting here. The first is that the removal of the ‘dangerousness’ criteria for involuntary detention could open the floodgates and result in the detention of individuals who cannot be detained under current legislative provisions. Secondly, he raises the concern that people who retain mental capacity but are a danger to themselves or others will no longer be capable of being detained – an issue which tends to be highly unpopular among the general public, and as a result, has deterred policy-makers in the past from taking this approach. The World Health Organisation’s Resource Book on Mental Health, Human Rights and Legislation also highlights that any combined legislation on mental health and mental capacity must be careful to distinguish ‘mental incapacity’ from ‘mental disorder’ in legislative provisions – rather than allowing presumptions of incapacity to be drawn from a diagnosis of mental disorder.

From a historical perspective it is clear that mental health law provisions on detention are rooted in a very different tradition to those relating to decision-making capacity. The detention of people with mental health difficulties and compulsory treatment has historically been based the need to ensure the safety of the public as well as a paternalistic concern for the best interests of the individual involved. O’Brien claims that these mental health laws have been part of western countries’ legal systems for so long that little thought is given to their necessity in the current climate, despite increasing human rights claims. The idea that these systems conflict with the liberal cornerstone of the presumption of capacity has only been raised in recent times – particularly with the entry into force of the CRPD which affirms the presumption of capacity in international human rights law and its equal application to people with disabilities (including those with mental health difficulties).

If the purpose of the proposed reform in Northern Ireland is to establish mental health and mental capacity legislation which share a common basis in human rights, this is a worthy goal, although it is questionable whether a single statute is necessary to achieve this aim. In addition, review procedures for the various interventions covered by the legislation may need to be structured differently based on the decision in question (e.g. more stringent review is obviously required for serious interventions such as medical treatment which may have long term consequences). As the Republic of Ireland is also preparing to publish mental capacity legislation it will be interesting to track both pieces of legislation as they develop in light of both jurisdictions commitments to the CRPD, and in Ireland’s case, as it prepares to ratify the Convention.